Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50393(U)(App. Term 2d Dept. 2015)
This was an interesting case. Here, the Appellate Term explicitly held that the failure to appear for an IME was ?possibly? a coverage defense. I will have to wait for further cases to clarify this point.
“In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim form, which denied this claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.
Plaintiff’s contention that it is entitled to summary judgment upon its first cause of action lacks merit. While defendant argued that it was entitled to summary judgment dismissing this cause of action because plaintiff had failed to provide requested verification, the Civil Court found that there was an issue of fact as to whether plaintiff had responded to defendant’s verification requests. However, we need not reach this issue since, as noted above, the record establishes that plaintiff’s assignor failed to appear for duly scheduled IMEs, and, thus, on that ground, defendant is likewise entitled to summary judgment dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720). As this appellate court has the power [*2]to search the record on this appeal by plaintiff and to award summary judgment to the nonappealing defendant (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), upon searching the record, we award summary judgment to defendant dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720).:
