From Casetext: Smarter Legal Research

Tyorkin v. Glob. Liberty Ins.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Oct 18, 2019
65 Misc. 3d 138 (N.Y. App. Term 2019)

Opinion

2017-2147 K C

10-18-2019

Maxim TYORKIN, M.D., as Assignee of Whitted Alonzo, Respondent, v. GLOBAL LIBERTY INSURANCE, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).


Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant.

Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross 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 so much of an order of the Civil Court as denied defendant's cross motion which had 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 cross motion, defendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (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 cross motion further 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 cross motion, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.


Summaries of

Tyorkin v. Glob. Liberty Ins.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Oct 18, 2019
65 Misc. 3d 138 (N.Y. App. Term 2019)
Case details for

Tyorkin v. Glob. Liberty Ins.

Case Details

Full title:Maxim Tyorkin, M.D., as Assignee of Whitted Alonzo, Respondent, v. Global…

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

Date published: Oct 18, 2019

Citations

65 Misc. 3d 138 (N.Y. App. Term 2019)
2019 N.Y. Slip Op. 51689
119 N.Y.S.3d 369