Progressive Orthopedics, PLLC v Hertz Corp., 2017 NY Slip Op 27193 (App. Term 2d Dept. 2017)
(1) “The Civil Court did not allow defendant to present any evidence in support of its defense that plaintiff’s assignor had failed to appear for duly scheduled IMEs, which would constitute a failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), because the court held that a prior order of the same court (Wavny Toussaint, J.), which had denied defendant’s summary judgment motion based on that failure to appear, had already determined that defendant could not establish that defense.”
(2) As per Vitality Chiropractic, P.C., the denial of a motion for summary judgment in and of itself establishes nothing
(3) Decision reversed
