Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 2010 NY Slip Op 50911(U)(App. Term 1st Dept. 2010)
As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
We note that, contrary to Civil Court’s determination, defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an IME provision (see 11 NYCRR 65-1.1),since the policy “shall be construed as if such provision[] [was] embodied therein” (Insurance Law § 5103[h]).
Would we have had the same outcome if the defense was the violation of the optional intoxication exclusion or a violation of another optional exclusion? I think not. But, on the basis of an IME or EUO defense, this decision is correct.
