October 13, 2016

Harvard Med., P.C. v Maya Assur. Co. (2016 NY Slip Op 51529(U))

Headnote

The insurer failed to prove proper addressing and mailing of IME scheduling letters, defeating summary judgment on nonappearance. Its affidavit did not sufficiently describe a standard office practice or procedure ensuring that the letters were properly addressed and mailed. Under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., that omission left the mailing showing deficient. The insurer therefore did not demonstrate that the assignor failed to attend duly scheduled IMEs. The Appellate Term, Second Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion.

Reported in New York Official Reports at Harvard Med., P.C. v Maya Assur. Co. (2016 NY Slip Op 51529(U))

[*1]
Harvard Med., P.C. v Maya Assur. Co.
2016 NY Slip Op 51529(U) [53 Misc 3d 141(A)]
Decided on October 13, 2016
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-335 Q C

Harvard Medical, P.C., as Assignee of ABUBAKARR JALLOH, Appellant,

against

Maya Assurance Company, Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 9, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment is denied.

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

Plaintiff correctly contends 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) had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also Healing Art Acupuncture, P.C. v Maya Assur. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50387[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). As a result, defendant failed to demonstrate 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 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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


Decision Date: October 13, 2016

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