Tyorkin v. Global Liberty Ins.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 18, 2019
• Docket: 2019 NYSlipOp 51689(U)
• Status: Published

Opinion

Maxim Tyorkin, M.D., as Assignee of Whitted Alonzo, Respondent,

against

Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 23, 2017. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its cross motion, defendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to [*2]coverage (id. at 722). As defendant's cross motion further established that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant's cross motion, defendant was entitled to summary judgment dismissing the complaint.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019