New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
August 31, 2012
ATLANTIC RADIOLOGY IMAGING, P.C. AS ASSIGNEE OF EMANUEL MALAYEV,
NY CENTRAL MUTUAL FIRE INS. CO.,
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 17, 2011.
Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co.
Decided on August 31, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., RIOS and ALIOTTA, 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 of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.
In support of its motion, defendant submitted an affidavit from an
employee of the company that had been retained by defendant to
schedule independent medical examinations (IMEs). The affidavit
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 licensed healthcare professionals who were to
perform the IMEs which established 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 ). In addition, an affidavit executed by defendant's employee
demonstrated that the denial of claim forms 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 should have been granted.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012
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