May 10, 2012

Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))

Headnote

The court considered the fact that the defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor, and that the assignor failed to appear. The main issue decided was whether the defendant was entitled to summary judgment dismissing the complaint, and the court held that the defendant-insurer was entitled to summary judgment and the complaint was dismissed. The court found that the plaintiff did not specifically deny the assignor's nonappearance or otherwise raise a triable issue with respect to the IMEs, and therefore the defendant's motion for summary judgment was granted.

Reported in New York Official Reports at Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))

Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U)) [*1]

Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 50844(U) [35 Misc 3d 138(A)]

Decided on May 10, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570854/11.

Continental Medical, P.C. a/a/o Nelson Weisberg, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 1, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 1, 2011, insofar as appealed from, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: May 10, 2012