Parisien v. Citiwide Auto Leasing

Appellate Terms of the Supreme Court of New York

Parisien v. Citiwide Auto Leasing

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 19, 2017

Docket2017 NYSlipOp 50684(U)

StatusPublished

This text of Parisien v. Citiwide Auto Leasing (Parisien v. Citiwide Auto Leasing) 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

Parisien v. Citiwide Auto Leasing, (N.Y. Ct. App. 2017).

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Opinion

Jules Francois Parisien, M.D., as Assignee of Quintana Dixon, Respondent,

against

Citiwide Auto Leasing, Appellant.

Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 5, 2015. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. As limited by its brief, defendant appeals from so much of an order of the Civil Court as denied defendant's motion.

The Civil Court erroneously held that, because defendant had failed to establish that it had scheduled the examinations at a time that was reasonably convenient for the assignor, there is an issue of fact as to the reasonableness of the IME requests. The no-fault regulations provide that an eligible injured person "shall submit" to IMEs "when, and as often as, the Company may reasonably require" (11 NYCRR 65-1.1), as an assignor's appearance for a duly scheduled IME is a condition precedent to the insurer's liability on the policy. As plaintiff never alleged, let alone demonstrated, that he or his assignor had responded in any way to the IME requests, plaintiff's objections to the reasonableness of the requests should not have been heard (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51459[U] [App Term, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: May 19, 2017

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Jules Francois Parisien, M.D., as Assignee of Quintana Dixon, Respondent,

against

Citiwide Auto Leasing, Appellant.

Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 5, 2015. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. As limited by its brief, defendant appeals from so much of an order of the Civil Court as denied defendant's motion.

The Civil Court erroneously held that, because defendant had failed to establish that it had scheduled the examinations at a time that was reasonably convenient for the assignor, there is an issue of fact as to the reasonableness of the IME requests. The no-fault regulations provide that an eligible injured person "shall submit" to IMEs "when, and as often as, the Company may reasonably require" (11 NYCRR 65-1.1), as an assignor's appearance for a duly scheduled IME is a condition precedent to the insurer's liability on the policy. As plaintiff never alleged, let alone demonstrated, that he or his assignor had responded in any way to the IME requests, plaintiff's objections to the reasonableness of the requests should not have been heard (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51459[U] [App Term, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: May 19, 2017

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Parisien v. Citiwide Auto Leasing, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parisien-v-citiwide-auto-leasing-nyappterm-2017.