Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51403(U)(App. Term 2d Dept. 2015)
“In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s fifth cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s fifth cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492[2005]). As plaintiff failed to raise a triable issue of act, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing this cause of action.
Contrary to plaintiff’s contention, defendant established that the independent medical examination (IME) and examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims underlying the first, third and fourth causes of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (Stephen Fogel[*2]Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing these causes of action.”
The same caveat holds true as before. The affidavit that promises responses to verification without the actual verification is insufficient to raise an issue of fact. My case. Thank you.
