Reported in New York Official Reports at Raz Acupuncture, P.C. v New S. Ins. Co. (2012 NY Slip Op 50865(U))
| Raz Acupuncture, P.C. v New S. Ins. Co. |
| 2012 NY Slip Op 50865(U) [35 Misc 3d 140(A)] |
| Decided on May 11, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1714 K C.
against
New South Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered August 14, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action.
ORDERED that 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 appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action.
The affidavits submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) plaintiff’s claims on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee [*2]schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.
Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 11, 2012
Reported in New York Official Reports at Medical Polis, P.C. v Progressive Ins. Co. (2012 NY Slip Op 50864(U))
| Medical Polis, P.C. v Progressive Ins. Co. |
| 2012 NY Slip Op 50864(U) [35 Misc 3d 139(A)] |
| Decided on May 11, 2012 |
| 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. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-1684 Q C.
against
Progressive Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered May 10, 2010. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order and for summary judgment.
ORDERED that 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 appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order and for summary judgment.
Notwithstanding defendant’s failure to assert in its answer a defense pursuant to State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), it was not precluded from seeking discovery related to that defense, since defendant made sufficient allegations in its moving papers that plaintiff, a professional service corporation, is ineligible to recover no-fault benefits because it fails to comply with applicable state or local licensing requirements (Lexington Acupuncture, P.C. v General Assur. Co., ___ Misc 3d ___, 2012 NY Slip Op 22047 [App Term, 2d, 11th & [*2]13th Jud Dists 2012]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, the court did not improvidently exercise its discretion in granting the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial. In light of the foregoing, the court properly denied plaintiff’s cross motion for a protective order and summary judgment (see CPLR 3212 [f]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012
Reported in New York Official Reports at Exclusive Physical Therapy, P.C. v MVAIC (2012 NY Slip Op 50862(U))
[*1]| Exclusive Physical Therapy, P.C. v MVAIC |
| 2012 NY Slip Op 50862(U) [35 Misc 3d 139(A)] |
| Decided on May 11, 2012 |
| 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. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-1583 Q C.
against
MVAIC, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard
G. Latin, J.), entered May 14, 2010. The order, insofar as appealed from as limited by the brief,
granted defendant’s motion for summary judgment dismissing the complaint. The appeal is
deemed to be from a judgment of the same court entered June 22, 2010, pursuant to the May 14,
2010 order, dismissing the complaint (see CPLR 5501 [c]).
ORDERED that the judgment is reversed, without costs, so much of the order entered May 14, 2010 as granted defendant’s motion for summary judgment dismissing the complaint is vacated 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, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court entered May 14, 2010 as granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Defendant did not establish the actual mailing of the denial of claim forms or defendant’s standard office practice and procedure for the mailing of the denial of claim forms during the pertinent time period. We note that, in his affidavit, defendant’s claims representative stated that [*2]he had begun working for defendant after the denial of claim forms at issue had allegedly been mailed by defendant. Consequently, defendant failed to show that its denial of claim forms had been timely mailed (South Nassau Orthopedic Surgery v Auto One Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and, thus, that it was not precluded from asserting the ground raised in support of its motion for summary judgment. Defendant, therefore, failed to establish its entitlement to summary judgment dismissing the complaint. In light of the foregoing, we reach no other issue.
Accordingly, the judgment is reversed, so much of the order entered May 14, 2010 as granted defendant’s motion for summary judgment dismissing the complaint is vacated and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012Sigma Psychological, P.C. v GEICO (2012 NY Slip Op 50868(U))
Reported in New York Official Reports at Sigma Psychological, P.C. v GEICO (2012 NY Slip Op 50868(U))
[*1]| Sigma Psychological, P.C. v GEICO |
| 2012 NY Slip Op 50868(U) [35 Misc 3d 140(A)] |
| Decided on May 11, 2012 |
| 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. |
PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1753 K C.
against
GEICO, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny
Toussaint, J.), entered March 1, 2010. The order, insofar as appealed from as limited by the brief,
denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
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 both the motion and the cross motion, finding that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely and properly denied plaintiff’s claim, and that the sole issue for trial was the medical necessity of the psychological services provided to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the [*2]complaint.
In support of its cross motion, defendant submitted, among other things, a sworn peer review report which set forth a factual basis and medical rationale for the psychologist’s determination that there was a lack of medical necessity for the services at issue. Defendant’s showing that the services were not medically necessary was unrebutted by plaintiff.
As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 11, 2012Central Radiology Servs., P.C. v MVAIC (2012 NY Slip Op 50875(U))
Reported in New York Official Reports at Central Radiology Servs., P.C. v MVAIC (2012 NY Slip Op 50875(U))
[*1]| Central Radiology Servs., P.C. v MVAIC |
| 2012 NY Slip Op 50875(U) [35 Misc 3d 140(A)] |
| Decided on May 11, 2012 |
| 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. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2744 Q C.
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D.
Edwards, J.), entered September 30, 2010, deemed from a judgment of the same court entered
October 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 30,
2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross
motion for summary judgment, awarded plaintiff the principal sum of $879.73.
ORDERED that the judgment is reversed, without costs, the order entered September 30, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court entered September 30, 2010 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]). [*2]
Since MVAIC established that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff’s assignor is not a covered person (see Insurance Law § 5221 [b] [2]), and, thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from MVAIC had not been satisfied (M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]).
Accordingly, the judgment is reversed, the order entered September 30, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012Central Radiology Servs., P.C. v MVAIC (2012 NY Slip Op 50877(U))
Reported in New York Official Reports at Central Radiology Servs., P.C. v MVAIC (2012 NY Slip Op 50877(U))
[*1]| Central Radiology Servs., P.C. v MVAIC |
| 2012 NY Slip Op 50877(U) [35 Misc 3d 141(A)] |
| Decided on May 11, 2012 |
| 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. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3051 Q C.
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard
G. Latin, J.), entered October 8, 2010, deemed from a judgment of the same court entered
November 10, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 8, 2010
order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for
summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,791.73.
ORDERED that the judgment is reversed, without costs, the order entered October 8, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied its cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle in [*2]which the assignor had been a passenger at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see e.g. Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Matter of AIU Ins. Co. v Marciante, 8 AD3d 266 [2004]), the judgment is reversed, the order is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012Five Boro Psychological Servs., P.C. v MVAIC (2012 NY Slip Op 50878(U))
Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v MVAIC (2012 NY Slip Op 50878(U))
[*1]| Five Boro Psychological Servs., P.C. v MVAIC |
| 2012 NY Slip Op 50878(U) [35 Misc 3d 141(A)] |
| Decided on May 11, 2012 |
| 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. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3063 K C.
against
MVAIC, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E.
Wade, J.), entered June 9, 2010, deemed from a judgment of the same court entered September
20, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 9, 2010 order denying
plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary
judgment, dismissed the complaint.
ORDERED that the judgment 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 its motion for summary judgment and granted a cross motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Since MVAIC established that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff’s assignor is not a covered person (see Insurance Law § 5221 [b] [2]), and, thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from MVAIC had [*2]not been satisfied (M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, the judgment is affirmed.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012Alpha Psychological Assessment, P.C. v MVAIC (2012 NY Slip Op 50879(U))
Reported in New York Official Reports at Alpha Psychological Assessment, P.C. v MVAIC (2012 NY Slip Op 50879(U))
[*1]| Alpha Psychological Assessment, P.C. v MVAIC |
| 2012 NY Slip Op 50879(U) [35 Misc 3d 141(A)] |
| Decided on May 11, 2012 |
| 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. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3207 Q C.
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph
Esposito, J.), entered March 23, 2010, deemed from a judgment of the same court entered
December 7, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 23, 2010
order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for
summary judgment dismissing the complaint, awarded plaintiff the principal sum of $194.58.
ORDERED that the judgment is reversed, without costs, the order entered March 23, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court entered March 23, 2010 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Since MVAIC established that there had been no timely filing of a notice of claim and [*2]that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff’s assignor is not a covered person (see Insurance Law § 5221 [b] [2]), and, thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from MVAIC was not satisfied (M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]).
Accordingly, the judgment is reversed, the order entered March 23, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012Ortho Pro Servs., Inc. v MVAIC (2012 NY Slip Op 50881(U))
Reported in New York Official Reports at Ortho Pro Servs., Inc. v MVAIC (2012 NY Slip Op 50881(U))
[*1]| Ortho Pro Servs., Inc. v MVAIC |
| 2012 NY Slip Op 50881(U) [35 Misc 3d 141(A)] |
| Decided on May 11, 2012 |
| 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. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3346 Q C.
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph
E. Greco, Jr., J.), entered November 19, 2010. The order, insofar as appealed from, denied
defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much an order of the Civil Court as denied its motion for summary judgment dismissing the complaint.
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which struck plaintiff’s assignor, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d [*2]137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op
50844(U))
Reported in New York Official Reports at Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))
| Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2012 NY Slip Op 50844(U) [35 Misc 3d 138(A)] |
| Decided on May 10, 2012 |
| Appellate Term, First 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. |
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570854/11.
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.
Defendant appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 1, 2011, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Fernando Tapia, J.), entered March 1, 2011, insofar as appealed from, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment
dismissing the action for first-party no-fault benefits by establishing that it timely and properly
mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that
the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy,
PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen
Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In
opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a
triable issue with respect thereto (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: May 10, 2012