Opinion
No. 2020-501 K C
09-23-2022
Columbus Imaging Center, LLC, as Assignee of Martinez, Tiena, Respondent,- v. Erie Insurance Company of New York, Appellant.
Robyn M. Brilliant, P.C. (Tori Y. Buttrum of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Unpublished Opinion
Robyn M. Brilliant, P.C. (Tori Y. Buttrum of counsel), for appellant.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered December 3, 2019. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint and, upon denying plaintiff's cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant's defense that plaintiff's assignor failed to appear for scheduled independent medical examinations.
ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant's motion for summary judgment dismissing the complaint and, upon denying plaintiff's cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant's defense that plaintiff's assignor failed to appear for scheduled IMEs.
Contrary to the determination of the Civil Court, defendant demonstrated that, before it had received the claim at issue, it properly scheduled IMEs of plaintiff's assignor, and that the assignor 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]). Defendant also demonstrated that it timely denied the claim (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]), based upon the assignor's failure to appear for the IMEs. An assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 A.D.3d at 722).
Plaintiff's remaining argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 A.D.3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc.3d 139 [A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.