All Mental Care Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52588(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered October 26, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment upon its claims seeking the sums of $240.20 and $1,201.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment on its claims for $240.20 and $1,201 and matter remanded to the court below for the calculation of statutory interest and attorney’s fees thereon.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Insofar as is relevant to this appeal, defendant
opposed the motion, asserting that it timely denied plaintiff’s claims seeking the sums of $240.20 and $1,201 based on the assignor’s failure to appear for two independent medical examinations (IMEs). The court below denied plaintiff’s motion for summary judgment. The instant appeal by plaintiff ensued.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

While defendant asserted that it timely denied plaintiff’s claims for the sums of $240.20 and $1,201 based on the assignor’s failure to appear for two scheduled IMEs, defendant failed to establish by proof in admissible form that the IME requests were timely mailed to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v [*2]Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff was entitled to summary judgment on these claims.
Accordingly, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees due on its claims for $240.20 and $1,201 pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in the case cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 31, 2008