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Proscan Imaging Buffalo As Assignee of Cevin B. Welch v. Clarendon National Insurance Company

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


October 12, 2011

PROSCAN IMAGING BUFFALO AS ASSIGNEE OF CEVIN B. WELCH,
RESPONDENT,
v.
CLARENDON NATIONAL INSURANCE COMPANY,
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, deemed from a judgment of the same court entered March 9, 2010 (see CPLR 5501 [c]).

Proscan Imaging Buffalo 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This opinion is uncorrected and will not be published in the printed Official Reports.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 judgment, entered pursuant to the February 8, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $1,100.

ORDERED that the judgment is reversed, without costs, the order entered February 8, 2010 is vacated, plaintiff's motion for summary judgment is denied 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, the Civil Court denied defendant's motion for summary judgment dismissing the complaint, based upon plaintiff's assignor's failure to appear for independent medical examinations (IMEs), and granted plaintiff's cross motion for summary judgment, finding that the affidavit by the chiropractor who was to perform the IMEs failed to establish the assignor's nonappearance. This appeal by defendant 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 the president of Media Referral, Inc., the independent medical review service retained by defendant to schedule IMEs, which affidavit 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 an affidavit from the chiropractor who was to perform the IMEs, which was 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 an employee in defendant's claims division demonstrated that the claim denial forms, 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 [2011]). Accordingly, the judgment is reversed, the order entered February 8, 2010 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

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

Decision Date: October 12, 2011

20111012

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