May 18, 2015

Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))

Headnote

In an action by a provider to recover assigned first-party no-fault benefits, the Civil Court had denied the provider's summary judgment motion and granted the insurer's cross motion based on the assignor's failure to appear for independent medical examinations. The Appellate Term, Second Department held that the insurer's affidavit did not set forth a standard office practice or procedure ensuring that the IME scheduling letters were properly addressed and mailed, so the insurer failed to show the IMEs were duly scheduled. The provider, however, also failed to make a prima facie showing, because its affidavit did not establish that the claim was not timely denied or that the denial was conclusory, vague or without merit. The order was modified to deny the insurer's cross motion and otherwise affirmed.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))

[*1]
Delta Diagnostic Radiology, P.C. v Maya Assur. Co.
2015 NY Slip Op 50786(U) [47 Misc 3d 151(A)]
Decided on May 18, 2015
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-100 Q C

Delta Diagnostic Radiology, P.C. as Assignee of YVES LAGUERRE, Appellant,

against

Maya Assurance Company, Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered December 6, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) of plaintiff’s assignor had been properly addressed and mailed (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]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled, and thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.


Decision Date: May 18, 2015