Ids Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C.

• Decision Date: 30 April 2014
• Parties: IDS PROPERTY CASUALTY INSURANCE COMPANY, appellant, v. STRACAR MEDICAL SERVICES, P.C., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1005
985 N.Y.S.2d 116
2014 N.Y. Slip Op. 02902

IDS PROPERTY CASUALTY INSURANCE COMPANY, appellant,
v.
STRACAR MEDICAL SERVICES, P.C., et al., respondents, et al., defendants.

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

April 30, 2014.

[985 N.Y.S.2d 117]

Bruno Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for appellant.

Moshe D. Fuld, P.C., Brooklyn, N.Y. (David Karp of counsel), for respondents.

MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated September 28, 2012, as, upon renewal of that branch of its prior motion which was for summary judgment, in effect, declaring that it is not obligated to pay the subject no-fault insurance benefits to the defendants Stracar Medical Services, P.C., Sweetwater Chiropractic, P.C., and Urban Well Acupuncture, P.C., adjourned the matter and directed that those defendants appear and testify at an examination under oath, at a date, time, and place mutually agreed upon by the parties.

ORDERED that the order is reversed insofar as appealed from, on the law, upon renewal, the determination in an order of the same court dated December 8, 2010, denying that branch of the plaintiff's motion which was for summary judgment, in effect, declaring that it is not obligated to pay the subject no-fault claims to the defendants Stracar Medical Services, P.C., Sweetwater Chiropractic, P.C., and Urban Well Acupuncture, P.C., is vacated, that branch of the plaintiff's motion which was for summary judgment is granted, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment, inter alia, declaring that the plaintiff is not obligated to pay the subject no-fault claims to the defendants Stracar Medical Services, P.C., Sweetwater Chiropractic, P.C., and Urban Well Acupuncture, P.C.; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The instant action arises out of an automobile accident that occurred on January 18, 2009, involving a vehicle insured by the plaintiff. The vehicle's owner and driver, as well as the three passengers allegedly in the vehicle at the time of the accident, assigned their no-fault insurance benefits to certain medical providers, who are the defendants in this action. The plaintiff

[985 N.Y.S.2d 118]

moved for summary judgment, in effect, declaring that it is not obligated to pay these no-fault benefits to the defendants Stracar Medical Services, P.C., Sweetwater Chiropractic, P.C., and Urban Well Acupuncture, P.C. (hereinafter collectively the assignees). The plaintiff argued that it was entitled to summary judgment because the assignees failed to appear at an examination under oath, as required by the subject insurance policies and, thus, they breached a condition precedent to coverage under the policies and were not entitled to recover their patients' no-fault benefits. In an order dated December 8, 2010, the Supreme Court denied that branch of the plaintiff's motion which was for summary judgment, in effect, declaring that it is not obligated to pay no-fault benefits to the assignees.

The plaintiff...