BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50880(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 22, 2010, deemed from a judgment of the same court entered November 15, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the October 22, 2010 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $5,349.47.

ORDERED that the judgment is reversed, without costs, so much of the order as denied the branches of defendant’s motion seeking summary judgment dismissing the first, second, fourth and fifth causes of action and granted plaintiff’s cross motion for summary judgment is vacated, the branches of defendant’s motion seeking summary judgment dismissing the first, second, fourth and fifth causes of action are granted, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, [*2]from which we deem the appeal to have been taken (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

In support of its motion for summary judgment, defendant submitted an affidavit by an employee of National Claim Evaluations, Inc. (NCEI), an entity which had scheduled independent medical examinations (IMEs) of plaintiff’s assignor on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with NCEI’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit from its examining chiropractor/acupuncturist, who stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. An affidavit executed by defendant’s litigation examiner demonstrated that denial of claim forms, which denied the claims at issue in the first, second, fourth and fifth causes of action based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). However, the affidavit did not address the claim at issue in the third cause of action. As a result, defendant established its prima facie entitlement to judgment as a matter of law as to the first, second, fourth and fifth causes of action (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to raise a triable issue of fact, the branches of defendant’s motion seeking summary judgment dismissing the first, second, fourth and fifth causes of action should have been granted and the branches of plaintiff’s cross motion seeking summary judgment on those causes of action should have been denied.

The branch of plaintiff’s cross motion seeking summary judgment on the third cause of action should have been denied as well, as plaintiff failed to demonstrate that defendant’s denial of claim form, which was attached to plaintiff’s cross motion, was not timely mailed to plaintiff, or that it was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order as denied the branches of defendant’s motion for summary judgment seeking to dismiss the first, second, fourth and fifth causes of action and granted plaintiff’s cross motion for summary judgment is vacated, the branches of defendant’s motion seeking summary judgment dismissing the first, second, fourth and fifth causes of action are granted, and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012