Opinion
2015–965 K C
12-22-2017
BRONX ACUPUNCTURE THERAPY, P.C., as Assignee of Rafael Uribe, Respondent, v. A. CENTRAL INS. CO., Appellant.
Gullo & Associates, LLC (Natalie Socorro, Esq.), for appellant. Gary Tsirelman, P.C. (Stephen Gurfinkel, Esq.), for respondent.
Gullo & Associates, LLC (Natalie Socorro, Esq.), for appellant.
Gary Tsirelman, P.C. (Stephen Gurfinkel, Esq.), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
ORDERED that the order is reversed, with $30 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 denying defendant's motion which sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).
In support of its motion, defendant submitted an affidavit by the operations manager of Transcion Medical, P.C., which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. , 35 AD3d 720 [2006] ). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage ( id. at 722 ). As defendant's moving papers established that defendant had timely denied (see St. Vincent's Hosp. of Richmond , 50 AD3d 1123 ) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant was entitled to summary judgment dismissing the complaint.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.