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

[*1] Compas Med., P.C. v Praetorian Ins. Co. 2015 NY Slip Op 51699(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-910 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 (Jodi Orlow, J.), entered March 19, 2013. The order, insofar as appealed from, denied the branches of plaintiff's motion seeking summary judgment upon the first through sixth 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 modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order, insofar as appealed from, is affirmed, without 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 19, 2013, insofar as appealed from, the Civil Court denied the branches of plaintiff's motion seeking summary judgment upon the first through sixth causes of action, granted the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action as premature because plaintiff had failed to provide requested verification, and granted the branches of defendant's cross motion seeking summary judgment dismissing the second through sixth 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 the branch of defendant's cross motion seeking summary judgment dismissing the first 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]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff's first 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]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff's owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this cause of action is premature (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]).

Contrary to plaintiff's contention, defendant established that the IME and EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123), 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 underlying the second 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 (see 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 these causes of action.

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

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

Decision Date: November 19, 2015