March 29, 2011

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))

Headnote

The main issue in this case was whether the defendant, New York Central Mutual Fire Insurance Company, had provided sufficient evidence that it had mailed notices of independent medical examinations (IMEs) to the assignor, and whether the assignor's failure to attend the IMEs was justified. The court considered the defendant's documentary submissions, which established that the IME notices had been mailed to the assignor and that the assignor had failed to attend the IMEs. The plaintiff, Center for Orthopedic Surgery, LLP, failed to raise a triable issue regarding the reasonableness of the requests or the assignor's failure to attend the IMEs. Therefore, the court held that the defendant had proved the mailing of the IME notices, and the complaint was dismissed. The decision was reversed, and the motion was granted in favor of the defendant.

Reported in New York Official Reports at Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U)) [*1]

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co.

2011 NY Slip Op 50473(U) [31 Misc 3d 128(A)]

Decided on March 29, 2011

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
571027/10.

Center for Orthopedic Surgery, LLP, a/a/o Derek Huff, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about December 10, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered on or about December 10, 2009, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). Plaintiff’s contention that defendant failed to prove the mailing of the IME notices to the assignor’s attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 29, 2011