Great Health Care Chiropractic, P.C. v Praetorian Ins. Co.

[*1] Great Health Care Chiropractic, P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51224(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-741 Q C

Great Health Care Chiropractic, P.C. as Assignee of BRIAN CUMMINGS, Appellant,

against

Praetorian Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 28, 2013. 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 affirmed, with $25 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 claim at issue based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff's motion and granted defendant's cross motion.

Contrary to plaintiff's arguments on appeal, the evidence submitted by defendant in support of its cross motion was sufficient to demonstrate that the denial of claim form 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 duly 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 denied plaintiff's motion and granted defendant's cross motion. In light of the foregoing, we do not reach plaintiff's remaining contentions.

Accordingly, the order is affirmed.

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

Decision Date: August 05, 2015