Metropolitan Surgical Servs., P.C. v. 21st Century Ins. Co.

Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U)) [*1] Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. 2022 NY Slip Op 50606(U) [75 Misc 3d 141(A)] Decided on June 17, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 17, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ 2020-357 K C Metropolitan Surgical Services, P.C., as Assignee of Andre Brown, Respondent, against 21st Century Ins. Co., Appellant. Law Offices of Buratti, Rothenberg & Burns (Rachel L. Hollander of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova and Zara Javakov of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 1, 2019. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking 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 the branch of defendant's 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). Insofar as relevant to this appeal, in support of its motion, defendant submitted an affidavit by the Director of Operations for Exam Coordinators Network, which had been retained by defendant to schedule IMEs of plaintiff's assignor, which affidavit sufficiently demonstrated that the IME scheduling letters had been timely mailed to plaintiff's assignor (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated that the assignor 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 failed to comply with a condition precedent to coverage (id. at 722). As defendant's motion further demonstrated that defendant timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, defendant demonstrated, prima facie, its entitlement to summary judgment and plaintiff failed to raise a triable issue of fact in opposition. [*2]Contrary to the determination of the Civil Court, as the IMEs were scheduled before defendant received the claim at issue, defendant was not required to comply with the obligations of 11 NYCRR 65-3.6 (b) (see City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94, 96 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]). Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking summary judgment dismissing the complaint is granted. ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur. ENTER Paul Kenny Chief Clerk Decision Date: June 17, 2022