City Anesthesia Healthcare, P.C. v Erie Ins. Co. of N.Y., 2021 NY Slip Op 50135(U)(App. Term 2d Dept. 2020)
“Contrary to the determination of the Civil Court, defendant demonstrated that, before it had received the claim at issue, it properly scheduled independent medical examinations (IMEs) of plaintiff’s assignor, and that the assignor failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant also demonstrated that it timely denied the claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), based upon the assignor’s failure to appear for the IMEs. An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Plaintiff’s contention that the pre-claim IME scheduling letter was required to be mailed within 30 days of defendant’s receipt of the NF-2 lacks merit (see 11 NYCRR 65-3.5 [a], [d]; Appendix 13).”
It is the bill, not the NF-2
