November 2, 2011

Dov Phil Anesthesiology Group v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51959(U))

Headnote

The relevant facts considered by the court were that the defendant had established that they had mailed notices of independent medical examinations (IME) to the assignor and his attorney, and that the assignor failed to appear. In response, the plaintiff was unable to raise a triable issue regarding the reasonableness of the requests for IMEs or the assignor's failure to attend. The main issue decided was whether the defendant had established a prima facie case for denial of the claim for no-fault benefits based on the assignor's failure to attend the IMEs. The holding of the court was that the defendant's motion for summary judgment should have been granted, and the complaint was dismissed.

Reported in New York Official Reports at Dov Phil Anesthesiology Group v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51959(U))

Dov Phil Anesthesiology Group v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51959(U)) [*1]

Dov Phil Anesthesiology Group v New York Cent. Mut. Fire Ins. Co.

2011 NY Slip Op 51959(U) [33 Misc 3d 132(A)]

Decided on November 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570276/11.

Dov Phil Anesthesiology Group, PLLC, a/a/o John Grady, 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 October 21, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 21, 2010, reversed, with $10 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 established prima facie that it mailed the notices of independent medical examinations (IME) to the assignor and his attorney, 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]; 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 assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 02, 2011