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

[*1] Compas Med., P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51679(U) Decided on November 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1213 Q C

Compas Medical, P.C. as Assignee of VALDINE SANCE, 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 25, 2013. The order, insofar as appealed from, denied plaintiff's motion for summary judgment and granted the branches of defendant's cross motion seeking summary judgment dismissing the first through fifth, and seventh 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered March 25, 2013, insofar as appealed from, the Civil Court denied plaintiff's motion and granted the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first through fifth, and seventh causes of action due to the failure of plaintiff's assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of its motion for summary judgment, plaintiff established its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). However, with respect to the sixth cause of action, defendant sufficiently described its procedures for the receipt of mail and stated that defendant has no record of having received this claim. By rebutting the presumption of receipt, defendant raised a triable issue of fact as to whether this claim had been submitted to defendant (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]). Thus, plaintiff was not entitled to summary judgment as to this cause of action.

In support of the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first through fifth, and seventh causes of action, defendant submitted an affidavit by its claims examiner which established that 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 duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claims underlying the first through fifth, and seventh causes of action on that ground, defendant was entitled to summary judgment dismissing these causes of action.

In light of the foregoing, we need not pass upon plaintiff's contention that defendant failed to establish that plaintiff's assignor had failed to appear for duly scheduled EUOs.

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

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

Decision Date: November 13, 2015