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Triangle R, Inc. As Assignee of Mark Tucker v. Clarendon National Insurance Co

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


October 12, 2011

TRIANGLE R, INC. AS ASSIGNEE OF MARK TUCKER,
RESPONDENT,
v.
CLARENDON NATIONAL INSURANCE CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered February 8, 2010.

Triangle R, Inc. v Clarendon Natl. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2011

PRESENT: PESCE, P.J., RIOS and STEINHARDT, 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 appeals from an order denying its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit from the president of Media Referral, Inc., the entity that scheduled independent medical examinations (IMEs) of plaintiff's assignor on defendant's behalf, which sufficiently established that the IME requests had been timely mailed in accordance with Media Referral, Inc.'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 sworn statements from the doctor and the chiropractor who were to perform the IMEs, which were sufficient 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]). In addition, an affidavit executed by defendant's no-fault claims examiner demonstrated that the claim denial form, based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed pursuant to defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff's claim based upon the assignor's failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Accordingly, the Civil Court should have granted defendant's motion for summary judgment dismissing the complaint.

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

Decision Date: October 12, 2011

20111012

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