August 6, 2015

Delta Diagnostic Radiology, P.C. v Hertz Co. (2015 NY Slip Op 51242(U))

Headnote

A provider sued a rental car company for assigned first-party no-fault benefits, and the insurer cross-moved for summary judgment on the ground that it timely denied claims for the assignor's failure to appear for independent medical examinations. The Civil Court denied the provider's motion, made CPLR 3212(g) findings in the provider's favor, and denied the cross motion, leaving for trial whether the IME letters were properly mailed. The Appellate Term, Second Department held that the defendant failed to articulate a sufficient basis to strike those findings, and found a triable issue of fact about whether the IME letters were sent to the proper address. The order was affirmed.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Hertz Co. (2015 NY Slip Op 51242(U))

[*1]
Delta Diagnostic Radiology, P.C. v Hertz Co.
2015 NY Slip Op 51242(U) [48 Misc 3d 141(A)]
Decided on August 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1307 K C

Delta Diagnostic Radiology, P.C. as Assignee of YVES NOZE, Respondent,

against

Hertz Co., Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 18, 2013. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). In an order entered April 18, 2013, insofar as appealed from, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issues for trial were whether defendant had properly mailed the IME scheduling letters sent to plaintiff’s assignor and, if so, whether the assignor had failed to appear for the duly scheduled IMEs.

We find that defendant has failed to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). In addition, upon a review of the record, we find that there is a triable issue of fact regarding the propriety of the address to which the IME scheduling letters were sent. As a result, defendant is not entitled to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is affirmed.

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


Decision Date: August 06, 2015