Elmont Rehab P.T., P.C. v. N.Y. Cent. Mut. Fire Ins. Co.

Full title: Elmont Rehab P.T., P.C., as Assignee of Gamero, Alfredo, Respondent, v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Jul 21, 2017

2017 N.Y. Slip Op. 50961 (N.Y. App. Term 2017)

Opinion

2015-457 K C

07-21-2017

Elmont Rehab P.T., P.C., as Assignee of Gamero, Alfredo, Respondent, v. New York Central Mutual Fire Insurance Company, Appellant.

Gullo & Associates, LLP ( Natalie Socorro, Esq.), for appellant. The Rybak Firm, PLLC ( Damin J. Toell, Esq.), for respondent.

MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ

PRESENT: :

Gullo & Associates, LLP ( Natalie Socorro, Esq.), for appellant.

The Rybak Firm, PLLC ( Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 11, 2014. The order denied defendant's motion for summary judgment dismissing the complaint.

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 denying defendant's motion which sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant established that, before receiving the claims at issue, it had mailed letters scheduling an initial and follow-up IME to plaintiff's assignor (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). As defendant's moving papers established that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant was entitled to summary judgment dismissing the complaint.

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. ENTER: Paul Kenny Chief Clerk Decision Date: July 21, 2017