Opinion
2013-1108 Q C
11-09-2015
New Way Medical Supply Corp. as Assignee of JEAN GUILLAUME, Appellant, v. Praetorian Ins. Co., Respondent.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 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 modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action are denied; as so modified, the order is affirmed, without 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 denied plaintiff's motion and granted defendant's cross motion. The first, second, third and fifth causes of action were dismissed as premature because plaintiff had failed to provide requested verification. The fourth cause of action was dismissed based on the failure of plaintiff's assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).
In support of the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first, second, third and fifth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff's first, second, third and fifth causes of action are premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff's owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether these causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).
Contrary to plaintiff's contention, defendant established that the IME and EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123), that plaintiff's assignor had failed to appear for the duly scheduled IMEs and EUOs ( see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied ( see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claims underlying the fourth cause of action on that ground. Since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage ( see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing this cause of action.
Accordingly, the order is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first, second, third and fifth causes of action are denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 09, 2015