XVVv, Inc. v Praetorian Ins. Co.

[*1] XVVv, Inc. v Praetorian Ins. Co. 2014 NY Slip Op 51862(U) Decided on December 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1815 K C

XVV, Inc. as Assignee of RAFAEL VERAS, Respondent, -

against

Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered June 6, 2012. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims based on plaintiff's assignor's failure to appear for examinations under oath (EUOs) and independent medical examinations (IMEs). The Civil Court denied the motion and cross motion, and held that the only remaining issue for trial was defendant's defense that plaintiff's assignor had failed to appear for EUOs.

With respect to the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's first cause of action, defendant established that IME and EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. [*2]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 plaintiff's assignor had failed to appear for the duly scheduled IMEs and EUOs (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 conditions precedent to coverage and that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claim on the ground that plaintiff's assignor had failed to appear for duly scheduled IMEs and EUOs, the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's first cause of action should have been granted.

However, the Civil Court properly denied the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's second cause of action, as defendant failed to establish, as a matter of law, that it had timely denied this claim.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's first cause of action is granted.

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

Decision Date: December 19, 2014