December 22, 2017

Active Care Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51859(U))

Headnote

The defendant's summary judgment dismissal based on the assignor's IME nonappearances was upheld on appeal. The provider's sole contention challenged the sufficiency of the affidavit from the doctor scheduled to perform the IMEs. The Appellate Term, Second Department, affirmed the order, finding the doctor's affidavit sufficient to establish nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., without further analysis.

Reported in New York Official Reports at Active Care Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51859(U))

[*1]
Active Care Med. Supply Corp. v ELRAC, Inc.
2017 NY Slip Op 51859(U) [58 Misc 3d 140(A)]
Decided on December 22, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 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
2015-379 K C

Active Care Medical Supply Corp., as Assignee of Barley, Taryn, Appellant,

against

ELRAC, Inc., Respondent.


The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Brand, Glick & Brand, P.C. (Jason P. Bertuna, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 8, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s sole contention, the affidavit submitted by the doctor who was to perform the IMEs was sufficient to establish that plaintiff had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the order is affirmed.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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