February 1, 2007

A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2007 NY Slip Op 50260(U))

Headnote

The court considered a motion for summary judgment in an action to recover assigned first-party no-fault benefits in which plaintiffs were denied their motion. The denial was based on the failure of the plaintiffs' assignor to comply with properly noticed independent medical examination (IME) requests. The main issue decided was whether the affidavit submitted by the defendant was sufficient to establish that the IME notices were mailed. The holding of the court was that the affidavit submitted by the defendant was indeed sufficient to establish that the IME notices were mailed, and therefore, the order denying plaintiffs' motion for summary judgment was affirmed.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2007 NY Slip Op 50260(U))

A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2007 NY Slip Op 50260(U)) [*1]

A.B. Med. Servs. PLLC v State-Wide Ins. Co.

2007 NY Slip Op 50260(U) [14 Misc 3d 137(A)]

Decided on February 1, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2005-1909 K C.

A.B. Medical Services PLLC D.A.V. Chiropractic P.C. LVOV Acupuncture P.C.A A/a/o Georges Plaisir, Appellants,
against
State-wide Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered August 4, 2005. The order denied plaintiffs’ motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition, defendant submitted an affidavit from an employee of the third-party retained by it to schedule and perform independent medical examination (IMEs) on defendant’s behalf. The court denied plaintiffs’ motion for
summary judgment, holding that there was an issue of fact due to the failure of plaintiffs’ assignor to comply with properly noticed IME requests. On appeal, plaintiffs contend, inter alia, that they were entitled to summary judgment because defendant failed to proffer non-hearsay evidence establishing that the IME notices were timely mailed.

Contrary to plaintiffs’ contention, the affidavit submitted by defendant was sufficient to establish that the IME notices were mailed (see Amaze Med. Supply Inc. v General Assur. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50307[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the order is affirmed.

Weston Patterson, J.P., Golia and Rios, JJ., concur.