Brand Med. Supply, Inc. v. Praetorian Ins. Co.

Full title: Brand Medical Supply, Inc., as Assignee of Davie Richard, 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. 50947 (N.Y. App. Term 2017)

Opinion

2014-1253 K C

07-21-2017

Brand Medical Supply, Inc., as Assignee of Davie Richard, Respondent, v. Praetorian Insurance Company, Appellant.

Law Offices of Moira Doherty, P.C. ( Janice P. Rosen, Esq.), for appellant. Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for respondent.

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

PRESENT: :

Law Offices of Moira Doherty, P.C. ( Janice P. Rosen, Esq.), for appellant.

Gary Tsirelman, P.C. (Irena Golodkeyer, 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 which denied defendant's motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (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 submitted an affidavit from the medical provider who was to perform the IMEs, which sufficiently established that plaintiff's assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant's claims examiner demonstrated that the denial of claim form, which denied the claim based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123). Since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722) and that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, the Civil Court should have granted defendant's motion for summary judgment.

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