Compas Med., P.C. v Praetorian Ins. Co.

[*1] Compas Med., P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51403(U) Decided on September 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-533 Q C

Compas Medical, P.C. as Assignee of Jean Guillaume, Appellant,

against

Praetorian Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 19, 2013. The order, insofar as appealed from, denied the branches of plaintiff's motion for summary judgment seeking summary judgment upon the first, third, fourth and fifth causes of action and granted the branches of defendant's cross motion seeking summary judgment dismissing these causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff's motion seeking summary judgment upon the first, third, fourth and fifth causes of action and granted the branches of defendant's cross motion seeking summary judgment dismissing these causes of action.

In support of the branch of defendant's cross motion seeking summary judgment dismissing plaintiff's fifth cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (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 demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff's fifth cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). As plaintiff failed to raise a triable issue of act, the Civil Court properly granted the branch of defendant's cross motion seeking summary judgment dismissing this cause of action.

Contrary to plaintiff's contention, defendant established that the independent medical examination (IME) and examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), 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]), 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 claims underlying the first, third and fourth causes of action on that ground. Since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (Stephen Fogel [*2]Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing these causes of action.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: September 16, 2015