Opinion
No. 2013–896 Q C.
11-13-2015
COMPAS MEDICAL, P.C. as Assignee of Michael Salomon, Appellant, v. AMERICAN TRANSIT INS. CO., Respondent.
Opinion
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 21, 2013. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment and granted the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims that had been denied due to the failure of plaintiff's assignor to appear for examinations under oath and independent medical examinations.
ORDERED that the order, insofar as appealed from, 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. The Civil Court, insofar as is relevant to this appeal, denied plaintiff's motion and granted the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been timely and properly denied on the ground that plaintiff's assignor had failed to appear for examinations under oath (EUOs) and independent medical examinations (IMEs).
Contrary to plaintiff's contention, defendant established that EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 2008 ) and that plaintiff's assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 2006 ). Thus, defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (id. at 722). As defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claims at issue on the ground that plaintiff's assignor had failed to appear for duly scheduled EUOs, and as plaintiff's remaining contentions lack merit, defendant was entitled to summary judgment dismissing these claims.
In light of the foregoing, we need not pass upon plaintiff's contention that defendant failed to establish that plaintiff's assignor had failed to appear for duly scheduled IMEs.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.