Judge Michael Ciaffa
Insurer IDS Property Casualty moved for summary judgment dismissing the claims for no-fault benefits that plaintiff provider timely filed. IDS timely denied plaintiff’s bills based on assignor Webb’s failure to attend an independent medical examination (IME). The court noted a claimant’s attendance at a properly noticed and scheduled IME was a condition precedent to an insurer’s obligation to cover no-fault claims. However, the court stated that IDS could not properly claim that Webb breached a condition precedent to coverage when IDS itself breached a regulatory condition precedent to its right to obtain an IME of Webb. The court concluded IDS’s IME notices could not be deemed to have substantially complied with notice requirements of 11 NYCRR 65-3.5(e), stating they failed to inform claimant at the time the examination was scheduled that applicant would be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the IME request. As such, the court ruled the IME letters were ineffective and insufficient to give proper notice to Webb of his right to reimbursement. Plaintiff’s fourth, fifth, sixth and seventh causes of action were not subject to dismissal on IME default grounds.
