Opinion
No. 2020-645 K C
07-01-2022
Citycare Chiropractic, P.C., as Assignee of Davon Simmons, Respondent, v. Repwest Insurance Company, Appellant.
Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed). Bryan Cave, LLP (Jennifer M. Jordan of counsel), for appellant.
Unpublished Opinion
Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).
Bryan Cave, LLP (Jennifer M. Jordan of counsel), for appellant.
PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered November 19, 2019. The order, insofar as appealed from, denied defendant's motion for partial summary judgment dismissing the second and third causes of action.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for partial summary judgment dismissing the second and third causes of action is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion for partial summary judgment dismissing the second and third causes of action on the ground that plaintiff's assignor had failed to appear at duly scheduled independent medical examinations (IMEs).
In support of its motion, defendant submitted an affidavit by an employee of Empire Stat Medical Review, P.C., which had been retained by defendant to schedule IMEs. This affidavit demonstrated that the IME scheduling letters had been timely and properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]). Defendant also demonstrated that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 A.D.3d 720 [2006]). Therefore, defendant demonstrated, prima facie, that plaintiff had failed to comply with a condition precedent to coverage (see id. at 722). Defendant's motion further demonstrated that defendant had timely denied the claims on that ground (see St. Vincent's Hosp. of Richmond, 50 A.D.3d 1123). Plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, as plaintiff's assignor's bald conclusory denial of receipt was insufficient to rebut the presumption that the IME scheduling letters were received (see CIT Bank N.A. v Schiffman, 36 N.Y.3d 550 [2021]; Nassau Ins. Co. v Murray, 46 N.Y.2d 828, 829-830 [1978]; Nationwide Affinity Ins. Co. of Am. v George, 183 A.D.3d 755 [2020]; Tyorkin v Repwest Ins. Co., 73 Misc.3d 142 [A], 2021 NY Slip Op 51208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Triangle R, Inc. v Tri-State Consumer Ins. Co., 38 Misc.3d 143[A], 2013 NY Slip Op 50256[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, defendant was entitled to partial summary judgment dismissing the second and third causes of action.
Accordingly, the order, insofar as appealed from, is reversed, and defendant's motion for partial summary judgment dismissing the second and third causes of action is granted.
WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.