March 28, 2007

A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2007 NY Slip Op 50663(U))

Headnote

The relevant facts the court considered in this case were that the plaintiffs were seeking to recover first-party no-fault benefits, but their motion for summary judgment was denied by the lower court due to issues regarding compliance with independent medical examination (IME) requests. The main issue decided was whether the defendant's submission of an affidavit from an employee was sufficient to establish that the IME notices were mailed. The holding of the case was that the affidavit submitted by the defendant was indeed sufficient to establish that the IME notices were mailed, and therefore the order denying the 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 50663(U))

A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2007 NY Slip Op 50663(U)) [*1]

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

2007 NY Slip Op 50663(U) [15 Misc 3d 131(A)]

Decided on March 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1819 K C.

A.B. Medical Services PLLC D.A.V. CHIROPRACTIC P.C. LVOV ACUPUNCTURE P.C. A/A/O Lucien Gelu, 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 actually 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. [*2]

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: March 28, 2007