December 19, 2017

Personal Touch Med. Care, P.C. v Maya Assur. Co. (2017 NY Slip Op 51823(U))

Headnote

The insurer failed to establish proper mailing of IME scheduling letters and therefore did not prove nonappearance at duly scheduled IMEs. Its affidavit did not sufficiently describe a standard office practice or procedure ensuring that the scheduling letters were properly addressed and mailed. That deficiency prevented the insurer from demonstrating the assignor's failure to attend duly scheduled IMEs and obtaining summary judgment dismissing the provider's assigned no-fault complaint. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's motion.

Reported in New York Official Reports at Personal Touch Med. Care, P.C. v Maya Assur. Co. (2017 NY Slip Op 51823(U))

[*1]
Personal Touch Med. Care, P.C. v Maya Assur. Co.
2017 NY Slip Op 51823(U) [58 Misc 3d 137(A)]
Decided on December 19, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1157 K C

Personal Touch Medical Care, P.C., as Assignee of Rizwan Ahmed, Appellant,

against

Maya Assurance Co., Respondent.


Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. De Martini & Yi, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered August 20, 2014. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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, as limited by its brief, from so much of an order of the Civil Court as 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, insofar as appealed from, is reversed and defendant’s motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

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