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Shoreline Healing Acupuncture Group, P.C. As Assignee of Tania Stevens and La Tey Stevens v. American Transit Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


August 4, 2011

SHORELINE HEALING ACUPUNCTURE GROUP, P.C. AS ASSIGNEE OF TANIA STEVENS AND LA TEY STEVENS,
RESPONDENT,
v.
AMERICAN TRANSIT INSURANCE COMPANY,
APPELLANT.

Shoreline Healing Acupuncture Group, P.C. v American Tr. Ins. Co.

2011 NY Slip Op 51531(U)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2011

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 8, 2010. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint and limited the issues for trial to defendant's defense that plaintiff's submission of its bills to defendant was late.

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

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 on the ground, among others, that plaintiff's assignors had failed to comply with a condition precedent to coverage in that they had failed to appear for an independent medical examination (IME). The Civil Court denied both motions and limited the issues of fact for trial (see CPLR 3212 [g]). Defendant appeals.

In support of its cross motion, defendant submitted an affidavit of an employee of Comprehensive Medical Reviews, which had been hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices had been timely sent to plaintiff's assignors in accordance with Comprehensive Medical Reviews' standard office practices and procedures (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]). Defendant also submitted an affidavit of the chiropractor who was to perform the IMEs, which established that the assignors 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).

As the appearance of an 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 should have been granted.

The remaining contentions raised on appeal either lack merit or need not be reached in light of this determination.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

20110804

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