New York Supreme and/or Appellate Courts APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
April 25, 2012
AXIS CHIROPRACTIC, PLLC AS ASSIGNEE OF JAMES GALARZA AND MANUEL SANTIAGO, APPELLANT, --
CLARENDON NATIONAL INS. CO., RESPONDENT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 10, 2010, deemed from a judgment of the same court entered May 25, 2010 (see CPLR 5501 [c]).
Axis Chiropractic, PLLC 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The judgment, entered pursuant to the March 10, 2010 order granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed, with $10 costs.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered March 10, 2010, granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment. 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 affidavits from the
president of the company retained by defendant to schedule independent
medical examinations (IMEs). The affidavits established that the IME
scheduling letters had been timely mailed pursuant to the company's
standard office practices and procedures (see St. Vincent's Hosp. of
Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Delta
Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App
Term, 2d & 11th Jud Dists 2007]). Defendant also submitted affirmations
from the orthopedist who was to perform the IMEs, which established that
plaintiff's assignors had failed to appear for the duly scheduled IMEs (see
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d
720 ). In addition, an affidavit executed by defendant's claims examiner
demonstrated that the denial of claim forms, which denied plaintiff's claims
based on plaintiff's assignors' nonappearance at the IMEs, had been timely
mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic
Radiology, P.C., 17 Misc 3d 16). Since the
appearance of an assignor at a duly scheduled 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 722), defendant's motion for summary
judgment dismissing the complaint was properly granted. Accordingly,
the judgment is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 25, 2012
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