Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51361(U))
| Compas Med., P.C. v American Tr. Ins. Co. |
| 2016 NY Slip Op 51361(U) [53 Misc 3d 130(A)] |
| Decided on September 19, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2673 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 20, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s only contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the examination under oath (EUO) scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (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 Solomon, JJ., concur.
Decision Date: September 19, 2016
Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51360(U))
| Compas Med., P.C. v American Tr. Ins. Co. |
| 2016 NY Slip Op 51360(U) [53 Misc 3d 129(A)] |
| Decided on September 19, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2591 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 18, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Defendant’s cross motion for summary judgment was predicated upon the defense that defendant had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). In order to prove that the EUO letters had been timely mailed, defendant submitted two affidavits, each describing a portion of defendant’s practices and procedures. While the affidavit that describes defendant’s mail room practices and procedures alleges that defendant mailed EUO scheduling letters on October 1, 2010 and October 29, 2010, the other affidavit, which alleges, based upon a combination of personal knowledge and practices and procedures, that a scheduling letter was prepared for mailing on October 29, 2010, does not even mention the October 1, 2010 letter. Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.
Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit. Plaintiff’s moving papers failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 2016
Reported in New York Official Reports at Sama Physical Therapy, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51359(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 4, 2013. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action and so much of the fifth and sixth causes of action as sought to recover in excess of “the proper No-Fault rate” of $32.57 for each of the claims underlying those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without 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. The Civil Court denied plaintiff’s motion and granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through third causes of action. In denying the branches of defendant’s cross motion seeking summary judgment dismissing the fourth through sixth causes of action, the court stated that “the claims are hereby adjusted to reflect the proper No Fault rate of $315.10,” but found that there was a triable issue of fact with respect to the medical necessity of the services billed for. This adjustment reflects a reduction of the claims underlying the fifth and sixth causes of action from $66.10 to $32.57; the fourth cause of action was not affected.
Plaintiff argues that the Civil Court should not have granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action, and, in effect, that the court should not have reduced the amount recoverable upon the fifth and sixth causes of action, because defendant did not demonstrate that plaintiff had not billed in accordance with the fee schedule. Plaintiff also argues that its motion for summary judgment should have been granted.
For the claims underlying the first through third, fifth and sixth causes of action, defendant demonstrated that it had changed CPT code 97799 to CPT code 97140 and reduced the amount due in accordance with that change. (It is noted that plaintiff did not bill under CPT code 97799 on the claim form underlying the fourth cause of action.) For the claims underlying the [*2]first through third causes of action, defendant applied Ground Rule 11, which states, “When multiple physical medicine procedures and/or modalities are performed on the same day, reimbursement is limited to 8.0 units or the amount billed, whichever is less.”
Contrary to plaintiff’s argument, defendant’s submissions were sufficient to demonstrate, prima facie, that it had properly applied CPT code 97140 to the services that had been billed under CPT code 97799, and plaintiff failed to raise a triable issue of fact with respect to the coding. However, plaintiff correctly argues that defendant did not demonstrate that Ground Rule 11 was appropriately applied to the services underlying the first through third causes of action.
Thus, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action should have been denied. The Civil Court properly reduced the amounts recoverable under the fifth and sixth causes of action, and plaintiff’s arguments on appeal with respect to defendant’s cross motion are not relevant to the fourth cause of action.
Contrary to plaintiff’s final contention, it failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action are denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 2016
Reported in New York Official Reports at TAM Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 51358(U))
| TAM Med. Supply Corp. v 21st Century Ins. Co. |
| 2016 NY Slip Op 51358(U) [53 Misc 3d 129(A)] |
| Decided on September 19, 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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2566 Q C
against
21st Century Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered November 18, 2013. 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 dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had fully paid plaintiff for the supplies at issue in accordance with the workers’ compensation fee schedule. The Civil Court granted defendant’s motion.
Plaintiff correctly argues on appeal that defendant’s motion papers failed to establish, as a matter of law, that the fees that had been charged by plaintiff exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Therefore, defendant was 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: September 19, 2016
Reported in New York Official Reports at Renelique v Allstate Ins. Co. (2016 NY Slip Op 51357(U))
| Renelique v Allstate Ins. Co. |
| 2016 NY Slip Op 51357(U) [53 Misc 3d 129(A)] |
| Decided on September 19, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through September 30, 2016; it will not be published in the printed Official Reports. |
Decided on September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2563 Q C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that defendant’s denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment.
However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 2016
Reported in New York Official Reports at Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))
| Compas Med., P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 51356(U) [53 Misc 3d 129(A)] |
| Decided on September 19, 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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2557 Q C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 18, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. Defendant’s cross motion was based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath.
Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.
However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s motion for summary judgment was properly denied.
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 2016
Reported in New York Official Reports at AVM Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51354(U))
| AVM Chiropractic, P.C. v 21st Century Ins. Co. |
| 2016 NY Slip Op 51354(U) [53 Misc 3d 129(A)] |
| Decided on September 19, 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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2513 K C
against
21st Century Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered July 15, 2013. 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 examinations under oath (EUOs).Contrary to plaintiff’s only arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 2016
Reported in New York Official Reports at Ultimate Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51353(U))
| Ultimate Health Prods., Inc. v Allstate Ins. Co. |
| 2016 NY Slip Op 51353(U) [53 Misc 3d 129(A)] |
| Decided on September 19, 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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2430 K C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered September 5, 2013. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and, upon denying defendant’s cross motion for summary judgment dismissing the complaint, made, in effect, a CPLR 3212 (g) finding in defendant’s favor.
ORDERED that the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in defendant’s favor is vacated; as so modified, the order, insofar as appealed from, is affirmed, without 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 the action was premature due to plaintiff’s failure to provide requested verification. Insofar as is relevant to this appeal, the Civil Court denied plaintiff’s motion and, upon denying defendant’s cross motion, made, in effect, a CPLR 3212 (g) finding in defendant’s favor, and held that the only remaining issue for trial was whether plaintiff had complied with defendant’s requests for verification.
Plaintiff correctly contends that defendant’s cross-moving papers failed to establish, as a matter of law, that the letters requesting verification had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, the Civil Court’s finding that defendant had established the timely mailing of the verification requests is vacated. However, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment, since the record does not establish, as a matter of law, that the verification requests were untimely or, if they were timely, that defendant received the requested verification and that defendant’s time to pay or deny the claim had expired.
Accordingly, the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in defendant’s favor is vacated.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 2016
Reported in New York Official Reports at Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U))
| TAM Med. Supply Corp. v Fiduciary Ins. Co. of Am. |
| 2016 NY Slip Op 51352(U) [53 Misc 3d 129(A)] |
| Decided on September 19, 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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2394 Q C
against
Fiduciary Insurance Company Of America, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 27, 2013. The order, insofar as appealed from, granted 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 appeals from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s contention, the affidavit of defendant’s claims examiner established that defendant had first learned of the accident on the date it had received an NF-2 form, which form had been submitted more than 30 days after the accident had occurred. Moreover, the denial of claim form informed plaintiff that it had the opportunity to “submit[] written proof providing clear and reasonable justification for the failure” to timely advise defendant of the accident (11 NYCRR §§ 65-1.1, 65-2.4 [b]). As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff (see Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to defendant’s receipt of the NF-2 form. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (see Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[A]; Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d 135[A], 2011 NY Slip Op 52018[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 2016
Reported in New York Official Reports at Tam Med. Supply Corp. v Tri State Consumers Ins. Co. (2016 NY Slip Op 51350(U))
| TAM Med. Supply Corp. v Tri State Consumers Ins. Co. |
| 2016 NY Slip Op 51350(U) [53 Misc 3d 128(A)] |
| Decided on September 19, 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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2363 Q C
against
Tri State Consumers Ins. Co., Respondent.
Appeals from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s contention, the affirmation defendant submitted from the doctor who was to perform an independent medical examination (IME) of plaintiff’s assignor was sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, we need not reach plaintiff’s contentions with respect to its motion for summary judgment or an alternate defense asserted by defendant.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 2016