Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co, 2013 NY Slip Op 50750(U)(App. Term 2d Dept. 2013)
“The affidavit further states that, in this case, after each of the dates on which an IME was scheduled, the assigned healthcare professional “informed” SIGNET that plaintiff’s assignor had not appeared. Defendant also attached letters from SIGNET to defendant stating that plaintiff’s assignor had failed to appear for scheduled IMEs. In its brief, defendant argues, in effect, that it had been “notified” that plaintiff’s assignor had failed to appear for IMEs and that the letters from SIGNET are not hearsay because the “statement” of the healthcare professional was being proffered in this case only to prove that the statement was made, not for its truth. However, in order to raise a triable issue of fact, defendant must demonstrate that plaintiff’s assignor actually failed to comply with a condition precedent to coverage by failing to appear for duly scheduled IMEs, and defendant failed to do so.
It was a novel attempt to prove a no-show through the vendor. Pre-Fogel, it would have worked. But for the last 7 years, this is not necessarily the way to go about making your case. The court was correct on this one.
