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Delta Diagnostic Radiology, P.C. As Assignee of Chiffon Abney v. Autoone Insurance Company

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


October 11, 2011

DELTA DIAGNOSTIC RADIOLOGY, P.C. AS ASSIGNEE OF CHIFFON ABNEY,
APPELLANT,
v.
AUTOONE INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 17, 2009, deemed from a judgment of the same court entered September 28, 2009 (see CPLR 5501 [c]).

Delta Diagnostic Radiology, P.C. v Autoone 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2011

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

The judgment, entered pursuant to the September 17, 2009 order granting defendant's motion for summary judgment and denying plaintiff's cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon the failure of plaintiff's assignor to appear for independent medical examinations (IMEs). Plaintiff cross-moved for summary judgment. The Civil Court granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion, defendant submitted an affidavit of a manager employed by the company retained by defendant to schedule the IMEs. The affidavit established that the IME scheduling letters had been timely mailed pursuant to the affiant's employer's 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 to establish 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]). 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 at 721).

Consequently, the judgment is affirmed.

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

Decision Date: October 11, 2011

20111011

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