Opinion
No. 2013–1469 KC.
11-19-2015
ALLEVIATION MEDICAL SERVICES, P.C. as Assignee of Diamond Brown, Appellant, v. CITIWIDE AUTO LEASING, Respondent.
Opinion
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 10, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim based on plaintiff's assignor's failure to appear for independent medical examinations (IMEs). The Civil Court denied plaintiff's motion and granted defendant's cross motion.
Contrary to plaintiff's contention, defendant established that verification requests and IME scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 2008 ); that, upon receipt of the requested verification, defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claim on the ground that plaintiff's assignor had failed to appear for duly scheduled IMEs; and that plaintiff's assignor had, in fact, failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 2006 ). Since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (id. at 722), defendant was entitled to summary judgment dismissing the complaint, and plaintiff's contention that its motion for summary judgment should have been granted lacks merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.