Compas Med., P.C. v Nationwide Ins.

[*1] Compas Med., P.C. v Nationwide Ins. 2014 NY Slip Op 51824(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2012-1693 K C

Compas Medical, P.C. as Assignee of JEAN GASTON, Appellant, -

against

Nationwide Ins., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered June 5, 2012. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's fourth cause of action is denied; as so modified, the order is affirmed, without costs.

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

In support of its motion for summary judgment, plaintiff established its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]). However, with respect to plaintiff's fourth cause of action, defendant sufficiently described its procedures for the receipt of mail and stated that defendant has no record of having received this claim. By rebutting the presumption of receipt, defendant raised a triable issue of fact as to whether this claim had been submitted to defendant (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]). Thus, neither party was entitled to summary judgment as to this cause of action.

With respect to plaintiff's remaining causes of action, defendant established that independent medical examination (IME) and examination under oath (EUO) scheduling letters, and the denial of claim forms, which denied the claims on the ground that plaintiff's assignor had failed to appear for such examinations, had been timely mailed (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]). As defendant further demonstrated that plaintiff's assignor did not appear for the duly scheduled IMEs and EUOs and, thus, that plaintiff's assignor had failed to comply with conditions precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), the Civil Court properly granted defendant summary judgment dismissing so much of the complaint as sought to recover upon those causes of action.

Plaintiff's remaining contention lacks merit.

Accordingly, the order is modified by providing that the branch of defendant's motion [*2]seeking summary judgment dismissing plaintiff's fourth cause of action is denied.

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

Decision Date: December 17, 2014