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East 75th Street Diagnostic Imaging, P.C. As Assignee of Carmelo Polanco, Respondent v. New York Central Mutual Fire Ins. Co.

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


March 28, 2012

EAST 75TH STREET DIAGNOSTIC IMAGING, P.C. AS ASSIGNEE OF CARMELO POLANCO, RESPONDENT,
v.
NEW YORK CENTRAL MUTUAL FIRE INS. CO., APPELLANT.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated October 5, 2010.

East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2012

PRESENT: LaCAVA, J.P., MOLIA and IANNACCI, 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.

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 did not appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of National Claims Evaluations, Inc. (NCEI), a company which defendant had hired to schedule the IMEs. The affidavit sufficiently established that the IME notices had been sent to plaintiff's assignor in accordance with NCEI's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted affidavits and an affirmation by the doctors who were 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 had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123).

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). As plaintiff's remaining contentions either lack merit or are improperly raised for the first time on appeal, the order of the District Court is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: March 28, 2012

20120328

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