Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51408(U)(App. Term 2d Dept. 2015)
“In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second 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 second 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 fact, 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 IME and EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123;Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 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 [*2]Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims underlying the remaining 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 Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing the remaining causes of action.”
This case is interesting because the famous Rybak affidavit alleges compliance with verification. This case was no different. Yet, the Court appears to have finally woken up and have said that the affidavit must be corroborated with proof showing that verification was complied with. My case. Thank you.
