Fiutek v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51840(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 11, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the complaint as to the claims for services rendered between August 4, 2006 and August 31, 2006, between September 5, 2006 and September 25, 2006, and between October 12, 2006 and October 23, 2006 are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). Plaintiff did not submit opposition papers. The Civil Court denied defendant’s motion, finding that the exhibits annexed to defendant’s moving papers “raise[d] triable issues of fact.”

In support of its motion, defendant submitted an affidavit of the president of an independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with the standard office practices and procedures for the generation and mailing of such IME notices (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]). Also annexed as exhibits were copies of the IME scheduling notices. In addition, defendant submitted an affidavit from the medical professional who was to [*2]perform the IMEs establishing that plaintiff’s assignor had failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Also included among defendant’s moving papers was an affidavit from its claims examiner, which set forth defendant’s standard office practices and procedures for mailing denial of claim forms. Among other things, he stated that, pursuant to defendant’s standard office practices and procedures, denial of claims forms are mailed on the date they are generated. However, with respect to plaintiff’s claim for services rendered between July 5, 2006 and July 31, 2006, while the denial of claim form pertaining to this claim is dated August 23, 2006, defendant’s claims examiner averred that it was mailed on September 26, 2006. As a result, there is an issue of fact with respect to defendant’s mailing of this denial of claim form (see Zuckerman v City of New York, 49 NY2d 557 [1980]). With respect to the remaining claims at issue, defendant’s claim examiner established that defendant’s denial of claim forms, which denied these claims based upon plaintiff’s assignor’s failure to appear for the IMEs, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

In light of the foregoing, defendant established its prima facie entitlement to judgment as a matter of law only with respect to plaintiff’s claims for services rendered between August 4, 2006 and August 31, 2006, between September 5, 2006 and September 25, 2006, and between October 12, 2006 and October 23, 2006 (see St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co., 29 Misc 3d 127[A], 2010 NY Slip Op 51728[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and summary judgment is awarded in favor of defendant accordingly.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011