Healing Art Acupuncture, P.C. v Country Wide Ins. Co.

[*1] Healing Art Acupuncture, P.C. v Country Wide Ins. Co. 2015 NY Slip Op 51465(U) Decided on September 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2013-594 K C

Healing Art Acupuncture, P.C. as Assignee of Jose Reyes, Appellant, -

against

Country Wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered December 21, 2012. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order is affirmed, without 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 defendant had timely and properly denied plaintiff's claims at issue based on the failure of plaintiff's assignor to appear for duly scheduled independent medical examinations (IMEs). The Civil Court granted defendant's motion.

With respect to the branches of defendant's motion seeking summary judgment dismissing the second through seventh causes of action, the evidence submitted by defendant was sufficient to demonstrate that the denial of claim forms 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]), 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 those branches of defendant's motion.

As to the first cause of action, the record shows that defendant failed to establish, as a matter of law, that it had timely denied the claim. Thus, the branch of defendant's motion seeking summary judgment dismissing the first cause of action should have been denied.

Plaintiff's remaining contentions are not properly before this court, as these arguments are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the first cause of action is denied.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: September 17, 2015