Opinion
2013-903 Q C
11-13-2015
Delta Diagnostic Radiology, P.C. as Assignee of CORNELIUS EVANGELIST, Appellant, v. Country Wide Insurance Company, Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 25, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
Defendant submitted sufficient proof to show that the independent medical examination (IME) scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff's assignor had failed to appear for duly scheduled IMEs, had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that plaintiff's assignor had not appeared for the duly scheduled IMEs and, thus, that plaintiff's assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to raise a triable issue of fact in opposition to defendant's cross motion, defendant's cross motion was properly granted.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 13, 2015