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American Transit Insurance Co. v. Leon

Supreme Court of New York, First Department

December 5, 2013

American Transit Insurance Company, Plaintiff-Appellant,
v.
Pablo Leon, et al., Defendants, Stand-Up MRI of Bensonhurst, P.C., Defendant-Appellant.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Gische, JJ.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered March 26, 2013, which denied plaintiff's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff insurance company has no obligation to pay defendant Stand-Up MRI's claims.

Plaintiff demonstrated its entitlement to judgment as a matter of law by submitting competent evidence that it mailed the notices scheduling the injured defendant's independent medical examinations (IMEs) and that he failed to appear for the examinations (see American Transit Ins. Co. v. Lucas, __ A.D.3d __, 2013 NY Slip Op 07273 [1st Dept 2013]; American Tr. Ins. Co. v Solorzano, 108 A.D.3d 449, 449 [1st Dept 2013]). Defendant provider's contention that plaintiff failed to prove the mailing of IME notices to the assignor's attorney, absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim, is unavailing (see Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins., 31 Misc.3d 128 [A], 2011 N.Y. Slip Op. 50473[U] [App Term 1st Dept 2011]).

Attendance at a medical examination is a condition of coverage. Accordingly, there is no requirement that the claim denial be timely made (see American Transit Ins. Co. v. Lucas, __ A.D.3d __, 2013 NY Slip Op 07273 ; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560 [1st Dept 2011], lv denied 17 N.Y.3d 705 [2012]).


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