Greenway Med. Supply Corp. v. Hartford Ins. Co.

Full title: Greenway Medical Supply Corp., as Assignee of Sweet Malcolm, Respondent…

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

Date published: Jul 21, 2017

2017 N.Y. Slip Op. 50960 (N.Y. App. Term 2017)

61 N.Y.S.3d 191

Opinion

2014-1995 K C

07-21-2017

Greenway Medical Supply Corp., as Assignee of Sweet Malcolm, Respondent, v. Hartford Insurance Company, Appellant.

Nightingale Law, P.C. (Michael S. Nightingale, 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: :

Nightingale Law, P.C. (Michael S. Nightingale, 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 (Ingrid Joseph, J.), entered August 4, 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 the 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]). Defendant further demonstrated that, upon receipt of the claims, it had timely denied the claims at issue based upon the assignor's failure to appear for IMEs (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123). 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 AD3d at 722).

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