Opinion
No. 2012–2134 K C.
03-16-2015
CORTLAND MEDICAL SUPPLY, P.C. as Assignee of Ryan Knights, Respondent, v. PRAETORIAN INS. CO., Appellant.
Opinion
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 which denied defendant's motion for summary judgment dismissing the complaint.
In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ; Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ). Defendant also submitted, among other things, affirmations and an affidavit from the medical providers who were to perform the IMEs, which sufficiently established that plaintiff's assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ). In addition, an affidavit executed by defendant's claims examiner demonstrated that the denial of claim forms, which, insofar as is relevant to this appeal, denied the claims based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C., 17 Misc.3d 16 ). Since appearance at an IME is a condition precedent to an insurer's liability on a policy (see 11 NYCRR 65–1.1 ; Stephen Fogel Psychological, P.C., 35 AD3d 720 ), the Civil Court should have granted defendant's motion for summary judgment.
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.