Utopia Equip., Inc. v NY Cent. Mut. Fire Ins. Co.

[*1] Utopia Equip., Inc. v NY Cent. Mut. Fire Ins. Co. 2014 NY Slip Op 51820(U) Decided on December 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1517 K C

Utopia Equipment, Inc. as Assignee of MIGUEL NUNEZ, 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 (Wavny Toussaint, J.), entered May 17, 2012. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $837.63 and $1,193.50 are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant established, with respect to claims for $837.63 and $1,193.50, that the denial of claim forms had been timely mailed (see 11 NYCRR 65-3.8 [a]; see also 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]) and that the claims had been denied on the ground that plaintiff had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant also submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the scheduling letters had been timely mailed in accordance with that office's standard mailing practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant further submitted an affidavit by the healthcare professional who was to perform the IMEs, which affidavit 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]). Since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage, the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

To the extent defendant's motion sought summary judgment dismissing the complaint with respect to claims for $515 and $199.35, defendant failed to establish, as a matter of law, that these claims had been timely denied (see 11 NYCRR 65-3.8 [l]).

Accordingly, the order is modified by providing that the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $837.63 and $1,193.50 are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 17, 2014