November 16, 2018

Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 51639(U))

Headnote

The self-insurer's summary judgment dismissing the provider's claims for the assignor's IME nonappearance was affirmed. The Appellate Term, Second Department, rejected the provider's sole contention that nonappearance was not proved, finding the submitted proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.

Reported in New York Official Reports at Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 51639(U))

[*1]
Active Care Med. Supply Corp. v ELRAC, Inc.
2018 NY Slip Op 51639(U) [61 Misc 3d 142(A)]
Decided on November 16, 2018
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1354 K C

Active Care Medical Supply Corp., as Assignee of Manley, Joe, Appellant,

against

ELRAC, Inc., Respondent.


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Carman, Callahan & Ingham, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 14, 2016. 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 proof submitted by defendant was sufficient to demonstrate that plaintiff’s assignor had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018

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