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Quality Psychological Services, P.C. As Assignee of Phillip Williamson, Respondent v. Travelers Home & Marine Insurance Company

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


May 6, 2013

QUALITY PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF PHILLIP WILLIAMSON, RESPONDENT
v.
TRAVELERS HOME & MARINE INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 28, 2010.

Quality Psychological Servs., P.C. v Travelers Home & Mar. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

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

The order granted plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which granted plaintiff's motion for summary judgment, finding that defendant had failed to prove that plaintiff's assignor had not appeared for independent medical examinations (IMEs).

On appeal, defendant argues that an affidavit executed by the operations manager of SIGNET Medical Services, P.C. (SIGNET), a company retained by defendant to manage the scheduling of IMEs, was sufficient to raise a triable issue of fact as to whether plaintiff's assignor had appeared for the scheduled IMEs. According to the affidavit, it is the "contractual responsibility" of the healthcare professional assigned to conduct a scheduled IME to "inform" SIGNET that a claimant did not appear for a scheduled appointment. The affidavit further states that, in this case, after each of the dates on which an IME was scheduled, the assigned healthcare professional "informed" SIGNET that plaintiff's assignor had not appeared. Defendant also attached letters from SIGNET to defendant stating that plaintiff's assignor had failed to appear for scheduled IMEs.

In its brief, defendant argues, in effect, that it had been "notified" that plaintiff's assignor had failed to appear for IMEs and that the letters from SIGNET are not hearsay because the "statement" of the healthcare professional was being proffered in this case only to prove that the statement was made, not for its truth. However, in order to raise a triable issue of fact, defendant must demonstrate that plaintiff's assignor actually failed to comply with a condition precedent to coverage by failing to appear for duly scheduled IMEs, and defendant failed to do so (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013

20130506

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