GLOBAL LIBERTY INSURANCE COMPANY v. Heather Davis, et al., Defendants. (2018)

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered December 8, 2017, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment seeking a declaration of non-coverage for no-fault benefits as against defendant New Century Acupuncture, P.C., as assignor of defendant Heather Davis, unanimously affirmed, without costs.

Plaintiff seeks a declaration of non-coverage based on the failure of defendant Davis, the injured claimant, to appear for two scheduled independent medical examinations (IMEs), which is a condition precedent to coverage (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 [1st Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2535157 [2011];  11 NYCRR § 65–1.1[d] ).  Plaintiff sent an initial IME scheduling letter, and a re-scheduling letter, to both Davis and her attorney.  After Davis failed to appear for the re-scheduled IME, plaintiff sent a third letter to the attorney, which indicated on its face that a copy had been sent to Davis.  However, it is undisputed that the letter to Davis was sent to the wrong address.  Thus, there was no reason for the attorney to know that Davis had not received notice of the re-scheduled IME and to tell her of the new IME date and location.  Under these circumstances, the motion court properly found that plaintiff failed to demonstrate that it provided adequate notice, reasonably calculated to apprise Davis that her appearance at an IME at a specified date and location was required (see generally Congregation Yetev Lev D'Satmar v. County of Sullivan, 59 N.Y.2d 418, 423, 465 N.Y.S.2d 879, 452 N.E.2d 1207 [1983];  cf. American Tr. Ins. Co. v. Marte–Rosario, 111 A.D.3d 442, 974 N.Y.S.2d 411 [1st Dept. 2013] ).