New Quality Med., P.C. v Praetorian Ins. Co.

[*1] New Quality Med., P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51697(U) Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-693 Q C

New Quality Medical, 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 (Barry A. Schwartz, J.), entered February 7, 2013. The order, insofar as appealed from and as limited by the brief, denied plaintiff's motion for summary judgment, granted the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first through sixth causes of action, and granted the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's seventh and eight causes of action to the extent of finding that the sole issue for trial with respect to these causes of action is defendant's defense of lack of medical necessity.

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 February 7, 2013, insofar as appealed from and as limited by plaintiff's brief, the Civil Court denied plaintiff's motion for summary judgment, granted the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first through sixth causes of action, and granted the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's seventh and eight causes of action to the extent of finding that the sole issue for trial with respect to these causes of action is defendant's defense of lack of medical necessity.

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 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]), 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 through sixth 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 Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing the first through sixth causes of action.

Upon a review of the record, we find that there are triable issues of fact regarding the [*2]medical necessity of the services at issue in plaintiff's seventh and eighth causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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

Decision Date: November 19, 2015