April 28, 2011

Excel Radiology Serv., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 50751(U))

Headnote

The relevant facts considered by the court were that the defendant was appealing an order from the Civil Court that denied its motion for summary judgment dismissing the complaint in an action to recover first-party no-fault medical benefits. The main issue decided by the court was whether the defendant had established prima facie that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs. The court held that the defendant's motion for summary judgment was properly denied because it failed to meet its burden of establishing that the notices of the IMEs were properly mailed and that the assignor failed to appear, as required by law. Therefore, the denial of the defendant's motion was required regardless of the sufficiency of the plaintiff's opposition papers.

Reported in New York Official Reports at Excel Radiology Serv., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 50751(U))

Excel Radiology Serv., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 50751(U)) [*1]

Excel Radiology Serv., P.C. v Utica Mut. Ins. Co.

2011 NY Slip Op 50751(U) [31 Misc 3d 138(A)]

Decided on April 28, 2011

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through May 11, 2011; it will not be published in the printed Official Reports.

Decided on April 28, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ
571044/10.

Excel Radiology Service, P.C. a/a/o Wilmer Centeno, Plaintiff-Respondent, – –
against
Utica Mutual 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 June 7, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered June 7, 2010, affirmed, with $10 costs.

In this action to recover first-party no-fault medical benefits, defendant’s motion for summary judgment was properly denied since it failed to establish, prima facie, that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]; cf. Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 28, 2011