April 12, 2022

American Tr. Ins. Co. v Melendez (2022 NY Slip Op 02356)

Headnote

The court considered the facts presented by the plaintiff insurer and the defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. regarding the entitlement to no-fault benefits. The main issue decided was whether the plaintiff insurer complied with the time frames in scheduling the defendant Louis Melendez's independent medical examination (IME) as set forth in the no-fault implementing regulations. The holding of the court was that the plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling the IME, and therefore, the defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. were entitled to no-fault benefits. The judgment of the Supreme Court, New York County was reversed, and the judgment vacated. The plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame.

Reported in New York Official Reports at American Tr. Ins. Co. v Melendez (2022 NY Slip Op 02356)

American Tr. Ins. Co. v Melendez

2022 NY Slip Op 02356 [204 AD3d 461]

April 12, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 1, 2022

[*1]

American Transit Insurance Company, Respondent,
v
Louis Melendez et al., Defendants, and Metro Pain Specialists, P.C., et al., Appellants.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Order and judgment (one paper), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 2, 2021, declaring that defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. are not entitled to no-fault benefits, unanimously reversed, on the law, with costs, and the judgment vacated.

Plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling defendant Louis Melendez’s independent medical examination (IME) as set forth in the no-fault implementing regulations (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Martinez, 202 AD3d 526 [1st Dept 2022]). Plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame (see 11 NYCRR 65-3.5 [b], [d]). Concur—Manzanet-Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ.