Mind & Body Acupuncture, P.C. v Praetorian Ins. Co.

[*1] Mind & Body Acupuncture, P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51658(U) Decided on November 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1118 Q C

Mind & Body Acupuncture, P.C. as Assignee of PASCAL GRAMONT, Appellant,

against

Praetorian Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 26, 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 appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff's contentions, the independent medical examination (IME) and examination under oath (EUO) scheduling letters were not mere delay letters. Moreover, defendant properly established that the scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), 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) the claims at issue. Since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff has failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

Decision Date: November 12, 2015