April 7, 2014

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50632(U))

Headnote

The main issue in this case was whether the defendant had timely mailed and properly scheduled independent medical examinations (IMEs) for the plaintiff. The court considered whether the initial scheduling letters had been timely mailed to the plaintiff, as required by Insurance Department Regulations. Defendant alleged that it had timely denied the claims at issue based upon plaintiff's assignor's failure to appear for duly scheduled IMEs. In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which established that the IME scheduling letters had been timely mailed to plaintiff's assignor. The court decided that it was not necessary to mail the initial scheduling letters to plaintiff, and reversed the Civil Court's order, granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50632(U))

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50632(U)) [*1]

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 50632(U) [43 Misc 3d 134(A)]

Decided on April 7, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-125 Q C.

BR Clinton Chiropractic, P.C. as Assignee of FRANCISCO VIRELLA, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered November 23, 2011. The order, insofar as appealed from 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 appeals, as limited by its brief, from so much of an order of the Civil Court as denied its motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The court stated that the only issue for trial was “whether [defendant] mailed timely and proper IME scheduling letters to [plaintiff].”

In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed to plaintiff’s assignor in accordance with that office’s standard mailing 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]). Contrary to the Civil Court’s order, it was not necessary to mail the initial scheduling letters to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [c] § 65-3.6 [b]). In view of the foregoing, and 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 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 2014