Opinion
46516/08.
Decided April 1, 2011.
Friedman, Harfenist, Kraut Perlstein, Lake Success, NY, Attorneys for Plaintiff.
Brand, Glilck Brand, Garden City, NY, Attorneys for Defendant.
The plaintiff commenced this action seeking to recover no-fault first party benefits for health services provided to its assignor, Timothy Brown, following a motor vehicle accident. The defendant moves for summary judgment dismissing the complaint pursuant to CPLR 3211 and/or 3212. The plaintiff opposes the motion and the defendant submits a reply.
In support of its motion, the defendant asserts that it was not required to pay or deny the instant claim because the plaintiff's assignor failed to appear at scheduled IMEs. In Stephen Fogel Psychological, P.C. v. Progressive Casualty Ins. Co. , 35 AD3d 720 (2d Dept 2006), the Court held that the appearance of the insured for IMEs at any time is a condition precedent to the insurer's liability on the policy ( see also NYCRR 65.12). As a condition precedent to the insurer's liability on the policy, said defense is never waived and can be raised at any time ( see Fair Price Medical Supply Corp. v. Travelers Indemnity Co. , 10 NY3d 556 ).
In order to support a motion for summary judgment based upon an assignor's failure to appear at an IME, the defendant must establish, prima facie, that it mailed the notices of the IME to the assignor and that the assignor failed to appear ( see Stephen Fogel Psychological, P.C., supra; Chi Acupuncture, P.C. v. Kemper Auto Home Ins. Co., 14 Misc 3d 141[A] [App Term 9th and 10th Jud Dists 2007]; Richard Morgan DO, PC v. State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A] [App Term 9th and 10th Jud Dists 2009]).
In the instant matter, the defendant has met its prima facie burden of submitting sufficient proof demonstrating that it mailed the IME notices to the assignor. Specifically, the affidavit of Mandy Grella, an Operations Manager for MES Solutions (hereinafter "MES"), an entity that schedules IMEs for the defendant, provided competent evidence of the standard office practice and procedure of MES when assigned by the Defendant to generate and mail IME notification letters to claimant/assignors. The affidavit established that MES's standard office practice and procedure in place at the time relevant to the instant litigation ensured that the IME notice letters were properly addressed and mailed.
Ms. Grella stated, upon personal knowledge, that it was the practice and procedure of MES to assign a unique file number to each claim. That two separate file numbers were assigned to the claimant/assignor's claim. Ms. Grella continued, that MES policy was to confirm a doctor's availability to perform an IME and an employee would draft a letter to the claimant/assignor. The address was taken from the claimant's no fault application received from the no fault insurer or agent. The letter advised the claimant/assignor of the time, date, and place of the scheduled IME. Further, Ms. Grella attests, that the standard procedure has an employee placing the letter in a window envelope; inspect the name and address listed on the letter for correctness and seal same. Thereafter, procedure dictates that the envelope is sent to a postage machine where it is posted and placed in a US Postal Service bin to await daily pick up from a postal service representative. All generated letters are mailed the same day. Ms. Grella states that upon review of the file, MES prepared and mailed correspondence to the claimant and his attorney on February 4, 2008 noticing the claimant for an IME on February 13, 2008. After being advised of Mr. Brown's no show by the IME doctor's office, a second letter was prepared and mailed on February 15, 2008 to the claimant and his attorney noticing the claimant for an IME on March 5, 2008. The file reflected that Mr. Brown failed to make that appointment.
Ms. Grella's recitation of protocol convinces the Court that the subject IME scheduling letters were actually mailed to the claimant/assignor ( Allstate Social Work and Psychological Svcs. PLLC v. Utica Mut. Ins. Co., 22 Misc 3d 723 [NYC Civ. Ct., 2008]).
Additionally, the affidavit of Scott Andes, D.O., a licensed physician, and the IME doctor, establishes to the Court's satisfaction that the claimant failed to appear for each scheduled appointment without excuse (see Five Boro Psychological Services, P.C. v. Autoone Ins. Co. 22 Misc 3d 978 (NYC Civ. Ct., 2008).
The Court notes that there is no argument made by Plaintiff that its claimant/assignor never received notice to attend the initial IME appointment or the subsequently scheduled appointment. Further, Plaintiff makes no argument as to the timeliness of the IME letters.
The Court finds that the Defendant has met its burden to establish prima facie, that it mailed the IME scheduling letters to the assignor and that the assignor failed to appear at either scheduled IME ( see Stephen Fogel Psychological, P.C., supra; Chi Acupuncture, P.C. v. Kemper Auto Home Ins. Co., 14 Misc 3d 141[A] [App Term 9th and 10th Jud Dists 2007]) thereby establishing claimant/assignor's breach of a condition precedent to coverage under the subject insurance policy vitiating coverage.
Accordingly, the defendant's motion is GRANTED and the complaint is dismissed.
SO ORDERED: