Great Health Care Chiropractic, P.C. v. Tri State Consumers Ins. Co.

Appellate Terms of the Supreme Court of New York

Great Health Care Chiropractic, P.C. v. Tri State Consumers Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 3, 2016

Docket2016 NYSlipOp 50864(U)

StatusPublished

This text of Great Health Care Chiropractic, P.C. v. Tri State Consumers Ins. Co. (Great Health Care Chiropractic, P.C. v. Tri State Consumers 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

Great Health Care Chiropractic, P.C. v. Tri State Consumers Ins. Co., (N.Y. Ct. App. 2016).

Pincite

Opinion

Great Health Care Chiropractic, P.C., as Assignee of MICHELLE THANE, Appellant,

against

Tri State Consumers Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 21, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff's motion and granted defendant's cross motion.

On appeal, plaintiff argues that defendant failed to establish that plaintiff's assignor had failed to appear for duly scheduled IMEs and that, as a result, plaintiff's motion for summary judgment should have been granted and defendant's cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff's contention, the affidavits submitted by defendant were sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs. An assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

We note that plaintiff's remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

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

Decision Date: June 03, 2016

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Great Health Care Chiropractic, P.C., as Assignee of MICHELLE THANE, Appellant,

against

Tri State Consumers Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 21, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff's motion and granted defendant's cross motion.

On appeal, plaintiff argues that defendant failed to establish that plaintiff's assignor had failed to appear for duly scheduled IMEs and that, as a result, plaintiff's motion for summary judgment should have been granted and defendant's cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff's contention, the affidavits submitted by defendant were sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs. An assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

We note that plaintiff's remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

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

Decision Date: June 03, 2016

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Great Health Care Chiropractic, P.C. v. Tri State Consumers Ins. Co., Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-health-care-chiropractic-pc-v-tri-state-consumers-ins-co-nyappterm-2016.

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