AP Orthopedic & Rehabilitation, P.C. v Mercury Cas. Co. (2014 NY Slip Op 51794(U))

Reported in New York Official Reports at AP Orthopedic & Rehabilitation, P.C. v Mercury Cas. Co. (2014 NY Slip Op 51794(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 8, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and plaintiff’s cross motion and held that the only remaining issue for trial was the propriety of defendant’s IME scheduling letters. Defendant argues on appeal that its motion for summary judgment dismissing the complaint should have been granted.

Contrary to the determination of the Civil Court, we find that defendant’s IME scheduling letters comply with the No-Fault Regulations (see 11 NYCRR 65-3.5 [e]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.