Delta Diagnostic Radiology, P.C. v. Kemper Ins. Co.

Appellate Terms of the Supreme Court of New York

Delta Diagnostic Radiology, P.C. v. Kemper Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 23, 2016

Docket2016 NYSlipOp 50396(U)

StatusPublished

This text of Delta Diagnostic Radiology, P.C. v. Kemper Ins. Co. (Delta Diagnostic Radiology, P.C. v. Kemper Ins. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Delta Diagnostic Radiology, P.C. v. Kemper Ins. Co., (N.Y. Ct. App. 2016).

Pincite

Opinion

Delta Diagnostic Radiology, P.C. as Assignee of NOEL JUNIOR, Appellant,

against

Kemper Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 22, 2013. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's sole argument on appeal with respect to the merits of defendant's motion, the affidavits submitted by defendant were sufficient to establish that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (id. at 722) and, in opposition to defendant's motion, plaintiff did not raise a triable issue of fact, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 23, 2016

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Delta Diagnostic Radiology, P.C. as Assignee of NOEL JUNIOR, Appellant,

against

Kemper Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 22, 2013. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's sole argument on appeal with respect to the merits of defendant's motion, the affidavits submitted by defendant were sufficient to establish that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (id. at 722) and, in opposition to defendant's motion, plaintiff did not raise a triable issue of fact, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 23, 2016

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Delta Diagnostic Radiology, P.C. v. Kemper Ins. Co., Counsel Stack Legal Research, https://law.counselstack.com/opinion/delta-diagnostic-radiology-pc-v-kemper-ins-co-nyappterm-2016.

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