Actual Chiropractic, P.C. V. Central Insurance Company, Slip Copy, 2016 WL 1199859 (Table), 2016 N.Y. Slip Op. 50397(U)
Defendant insurer moved to dismiss the complaint on the ground that it had timely and properly denied the claim at issue based upon the injured assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The Court affirmed the lower court stating:
Defendant’s motion papers failed to establish as a matter of law that the letters scheduling the IMEs of plaintiff’s assignor had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that it is entitled to summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to an insurer’s liability on a policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).