Opinion
No. 570894/15.
12-18-2015
ALFA MEDICAL SUPPLIES, INC., a/a/o Yenni M. Diaz, Plaintiff–Appellant, - v. PRAETORIAN INSURANCE COMPANY, Defendant–Respondent.
Order (Tanya R. Kennedy, J.), entered February 3, 2015, affirmed, with $10 costs.
Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider's claim for first-party no-fault benefits by establishing that it properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor and her attorney, and that the assignor failed to appear (see American Tr. Ins. Co. v. Lucas, 111 AD3d 423 [2013] ; American Tr. Ins. Co. v. Solorzano, 108 AD3d 449 [2013] ). Contrary to plaintiff's contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff's claim forms (see 11 NYCRR 65–1.1 ; Steven Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006] ; Easy Care Acupuncture P.C. v. Praetorian Ins. Co., 49 Misc.3d 137[A], 2015 N.Y. Slip Op 51524[U][App Term, 1st Dept 2015] ; see also Inwood Hill Med., P.C. v. General Assur. Co., 10 Misc.3d 18, 19–20 [2005] ). Moreover, defendant submitted competent evidence of the assignor's nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and defendant's third-party IME scheduler, setting forth facts sufficient to demonstrate the affiants' personal knowledge of the assignor's repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a schedule IME (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424 ; Harmonic Physical Therapy v. Encompass Home and Auto Ins. Co. 47 Misc.3d 146[A], 2015 N.Y. Slip Op 50733[U][App Term, 1st Dept 2015] ).
In opposition, plaintiff did not specifically deny the assignor's nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011] ; see also Badio v. Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004] ). “Accordingly, when [plaintiff's] assignor[ ] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v. Lucas, 111 AD3d at 424 ), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560 ).
Plaintiff's remaining contentions are unpreserved and/or without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.