Alleviation Med. Servs., P.C. v Citiwide Auto Leasing

[*1] Alleviation Med. Servs., P.C. v Citiwide Auto Leasing 2015 NY Slip Op 51222(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-663 K C

Alleviation Medical Services, P.C. as Assignee of LANSHA FEARON, Appellant,

against

Citiwide Auto Leasing, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered November 30, 2012. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

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 it had timely and properly denied the claim at issue based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court granted defendant's motion.

Contrary to plaintiff's arguments on appeal, the evidence submitted by defendant in support of its motion was sufficient to demonstrate that the denial of claim form as well as the IME scheduling letters 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]), and that plaintiff's assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As an assignor's appearance at a duly scheduled IME "is a condition precedent to the insurer's liability on the policy" (id. at 722), the Civil Court properly granted defendant's motion.

Accordingly, the order is affirmed.

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

Decision Date: August 05, 2015