Jacoby Chiropractic, P.C. v Redland Ins. Co., 2013 NY Slip Op 51998(U)(App. Term 2d Dept 2013)
“The Civil Court (Richard G. Latin, J. ) denied both motions, finding that plaintiff had established its prima facie entitlement to summary judgment, that defendant had timely denied the claims based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), and that defendant had timely and properly requested IMEs. Thus, the only issue for trial was “the no-show of the assignor at the IMEs.”
In support of its cross motion, defendant submitted an affidavit by the healthcare professional retained to perform the IMEs which established that plaintiff’s assignor had failed to appear at IMEs on June 12, 2009 and June 25, 2009. As an appearance at an IME is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 [*2]NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ) and plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted.”
How much do you want to bet that this particular judge, when confronted with the same no-show affidavit, will deny the motion for summary judgment and prompt another appeal? He will say, well how do we know your healthcare professional was in the office that entire day and knew that the assignor failed to attend the IME. I can see it already.
There is no end in sight.
See also: Vit Acupuncture, P.C. v Praetorian Ins. Co., 2013 NY Slip Op 52000(U)(App. Term 2d Dept 2013)