Am. Transit Ins. Co. v. Leon

• Decision Date: 05 December 2013
• Citation: 2013 N.Y. Slip Op. 08124,112 A.D.3d 441,975 N.Y.S.2d 875
• Parties: AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff–Appellant, v. Pablo LEON, et al., Defendants, Stand–Up MRI of Bensonhurst, P.C., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 441

975 N.Y.S.2d 875

2013 N.Y. Slip Op. 08124

AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff–Appellant,

v. Pablo LEON, et al., Defendants,Stand–Up MRI of Bensonhurst, P.C., Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 5, 2013.

OPINION TEXT STARTS HEREThe Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered March 26, 2013, which denied plaintiff's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff insurance company has no obligation to pay defendant Stand–Up MRI's claims.

Plaintiff demonstrated its entitlement to judgment as a matter of law by submitting competent evidence that it mailed the notices scheduling the injured defendant's independent medical examinations (IMEs) and that he failed to appear for the examinations ( see American Transit Ins. Co. v. Lucas, 111 A.D.3d 423, 974 N.Y.S.2d 388, 2013 N.Y. Slip Op. 07273 [1st Dept.2013]; American Tr. Ins. Co. v. Solorzano, 108 A.D.3d 449, 449, 968 N.Y.S.2d 372 [1st Dept.2013] ). Defendant provider's contention that plaintiff failed to prove the mailing of IME notices to the assignor's attorney, absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim, is unavailing ( see Center for Orthopedic Surgery, LLP v. New York Cent. Mut. Fire Ins., 31 Misc.3d 128(A), 2011 N.Y. Slip Op. 50473(U), 2011 WL 1135952 [App.Term. 1st Dept.2011] ).

Attendance at a medical examination is a condition of coverage. Accordingly, there is no requirement that the claim denial be timely made ( see American Transit Ins. Co. v. Lucas, 111 A.D.3d 423, 974 N.Y.S.2d 388;Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560, 918 N.Y.S.2d 473 [1st Dept.2011], lv. denied17 N.Y.3d 705, 2011 WL 2535157 [2012] ).

MAZZARELLI, J.P., SWEENY, DeGRASSE, FREEDMAN, GISCHE, JJ., concur.