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Alev Medical Supply, Inc. As Assignee of Kirk Wallace v. New York Central Mutual Fire Insurance Company

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


February 19, 2013

ALEV MEDICAL SUPPLY, INC. AS ASSIGNEE OF KIRK WALLACE,
RESPONDENT,
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 4, 2011.

Alev Med. Supply, Inc. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2013

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order, insofar as appealed from, granted the branches of plaintiff's cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant's motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered May 5, 2011 awarding plaintiff the principal sum of $1,368 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the April 4, 2011 order as granted the branches of plaintiff's cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant's motion seeking summary judgment dismissing those causes of action is vacated, those branches of defendant's motion are granted and those branches of plaintiff's cross motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the bills at issue had been timely denied based upon plaintiff's assignor's failure to appear for independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. The Civil Court granted the branch of defendant's motion seeking summary judgment dismissing the first cause of action and granted the branches of plaintiff's cross motion seeking summary judgment on the second and third causes of action. The court implicitly found that defendant had demonstrated that it had timely and properly mailed initial and follow-up IME scheduling letters and that plaintiff's assignor had not appeared for the scheduled IMEs. However, as to the second and third causes of action, the court found that defendant's denials were untimely because they had been mailed more than 45 days after plaintiff's assignor had violated a policy condition by failing to appear for the second scheduled IME. On appeal, defendant argues that the branches of its motion seeking summary judgment dismissing the second and third causes of action should have been granted.

Defendant demonstrated that it had timely mailed both initial and follow-up IME requests and initial and follow-up requests for written verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]), thereby tolling its time to pay or deny the claims at issue. While plaintiff's assignor failed to appear for IMEs on January 16, 2009 and February 2, 2009, defendant did not receive the requested written verification until February 19, 2009. As defendant denied the claims within 30 days of its receipt of the requested written verification (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), the claims at issue were timely denied on the ground that plaintiff's assignor had failed to appear for properly scheduled IMEs, regardless of the fact that the last nonappearance had occurred more than 45 days prior to the issuance of the denial (see Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 154[A], 2012 NY Slip Op 51725[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant was not precluded from raising the defense, and, as plaintiff failed to raise a triable issue of fact, the branches of defendant's motion seeking summary judgment dismissing the second and third causes of action should have been granted.

Accordingly, the judgment is reversed, so much of the April 4, 2011 order as granted the branches of plaintiff's cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant's motion seeking summary judgment dismissing those causes of action is vacated, those branches of defendant's motion are granted and those branches of plaintiff's cross motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 19, 2013

20130219

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