By MD, P.C. v NY Cent. Mut. Fire Ins. Co.

[*1] By MD, P.C. v NY Cent. Mut. Fire Ins. Co. 2014 NY Slip Op 51232(U) Decided on July 28, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2012-1066 K C

By MD, P.C. as Assignee of AARON HOPE, Respondent, -

against

NY Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered April 16, 2012. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based upon plaintiff's assignor's failure to appear for independent medical examinations (IMEs). The Civil Court denied the motion, finding that plaintiff had raised a triable issue of fact as to whether plaintiff's assignor had received written notice of the IMEs.

In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office's standard mailing practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The affidavit submitted by plaintiff was insufficient to rebut the presumption of receipt (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists 2005]). Defendant also submitted affidavits by the healthcare professional who was to perform the IMEs, which affidavits established that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Finally, an affidavit executed by defendant's claims examiner sufficiently described the standard mailing practices and procedures for denial of claim forms (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). In view of the foregoing, and since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, [*2]P.C., 35 AD3d at 722), defendant's motion for summary judgment dismissing the complaint should have been granted.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Aliotta and Elliot, JJ., concur.
Decision Date: July 28, 2014