Performance Plus Med., P.C. v. Utica Mut. Ins. Co.

• Citation: 13 N.Y.S.3d 852 (Table)
• Decision Date: 16 March 2015
• Docket Number: No. 2012–2520 K C.,2012–2520 K C.
• Parties: PERFORMANCE PLUS MEDICAL, P.C. as Assignee of Rondell Wagner, Respondent, v. UTICA MUTUAL INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Term

13 N.Y.S.3d 852 (Table)

PERFORMANCE PLUS MEDICAL, P.C. as Assignee of Rondell Wagner, Respondent

v.UTICA MUTUAL INSURANCE COMPANY, Appellant.

No. 2012–2520 K C.

Supreme Court, Appellate Term, Second Dept., 2d, 11th and 13th Judicial Districts.

March 16, 2015.

Opinion

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 moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on plaintiff's assignor's failure to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The Civil Court denied defendant's motion.

Defendant submitted sufficient proof to show that the EUO and IME scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ; Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ); that, where necessary, the time to pay or deny plaintiff's claim had been tolled by issuance of those letters; that plaintiff's assignor had failed to appear for any of the properly scheduled EUOs and IMEs; and that the claims had been timely denied on that ground (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C ., 17 Misc.3d 16 ). We note that, contrary to plaintiff's argument on appeal, the mailing affidavit submitted by defendant alleged that two copies of each denial of claim form were mailed to plaintiff. In any event, the failure to send a denial in duplicate is not, on its own, a fatal error (Mollo Chiropractic, PLLC v. American Commerce Ins. Co., 42 Misc.3d 66, 69 [App Term, 2d, 11th & 13th Jud Dists 2013] ).

Since an assignor's appearance at any properly scheduled EUO or IME is a condition precedent to the insurer's liability on the policy (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ), the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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