Arcadia Imaging, P.C. v Praetorian Ins. Co.

[*1] Arcadia Imaging, P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51208(U) Decided on August 5, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2041 K C

Arcadia Imaging, P.C. as Assignee of Donovan Lewis, Respondent, August 5, 2015

against

Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County

(Genine D. Edwards, J.), entered July 18, 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 appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.

Defendant submitted an affidavit by the president of the company which had been retained by defendant to schedule independent medical examinations (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 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]). Defendant also submitted affidavits by the healthcare professionals who were 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]). An affidavit executed by defendant's claims examiner sufficiently described the standard mailing practices and procedures to establish the timely mailing of the denial of claim form (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 an assignor's appearance at an IME is a condition precedent to the insurer's liability on the policy (see Stephen Fogel Psychological, 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.

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

Decision Date: August 05, 2015