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All County, LLC As Assignee of Christopher Amodeo v. Unitrin Advantage Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


April 6, 2011

ALL COUNTY, LLC AS ASSIGNEE OF CHRISTOPHER AMODEO,
RESPONDENT,
v.
UNITRIN ADVANTAGE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 23, 2009.

All County, LLC v Unitrin Advantage Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2011

PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ

The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

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 plaintiff's assignor had failed to comply with a condition precedent to coverage in that he had failed to appear for an independent medical examination (IME). The District Court denied defendant's motion, and defendant appeals.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit of an employee of Alternative Consulting and Examinations (ACE), which had been hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices had been sent to plaintiff's assignor in accordance with ACE's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Defendant also submitted an affidavit of the doctor who was to perform the IMEs, which established that the 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]). In addition, defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d at 1124).

We note that, contrary to the finding of the District Court, while Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) states that a no-fault insurer must base its request for an examination under oath upon "the application of objective standards so that there is specific objective justification supporting the use of such examination," it does not impose such a standard on a request for an IME.

As the appearance of the assignor at an IME is a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), defendant's motion for summary judgment dismissing the complaint is granted.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.

Decision Date: April 06, 2011

20110406

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