October 16, 2012

Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51955(U))

Headnote

The main issue in this case was whether the defendant, New York Central Mutual Fire Insurance Company, was entitled to summary judgment dismissing the complaint brought by Infinity Health Products, Ltd as the assignee of Damian Thomas. The court considered the fact that the defendant had submitted evidence of timely mailing of independent medical examination (IME) scheduling letters and denial of claim forms, and that the plaintiff's assignor had failed to appear for the scheduled IMEs. The court held that the defendant had established its prima facie entitlement to judgment as a matter of law, as the plaintiff's evidence failed to raise a triable issue of fact. As a result, the court reversed the order of the Civil Court, and granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51955(U))

Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51955(U)) [*1]

Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 51955(U) [37 Misc 3d 129(A)]

Decided on October 16, 2012

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-548 K C.

Infinity Health Products, Ltd. as Assignee of DAMIAN THOMAS, Respondent, —
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered August 6, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant submitted an affidavit by an employee of Crossland Medical Services, P.C. (Crossland), the entity which had scheduled the independent medical examinations (IMEs) involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland’s standard office practices and procedures (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]). Defendant also submitted an affirmation by its examining physician, who stated that plaintiff’s assignor had failed to appear for the duly scheduled IMEs, and an affidavit by defendant’s litigation examiner which established that defendant’s denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The affirmation of plaintiff’s counsel and affidavit from plaintiff’s billing manager failed to raise a triable issue of fact.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 16, 2012