November 30, 2018

Metro Psychological Servs., P.C. v ELRAC, Inc. (2018 NY Slip Op 51760(U))

Headnote

The self-insurer's summary judgment dismissal for the assignor's IME nonappearance was affirmed on mailing and nonappearance proof. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion for summary judgment. It found proof of proper denial mailing and IME nonappearance sufficient under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., respectively.

Reported in New York Official Reports at Metro Psychological Servs., P.C. v ELRAC, Inc. (2018 NY Slip Op 51760(U))

[*1]
Metro Psychological Servs., P.C. v ELRAC, Inc.
2018 NY Slip Op 51760(U)
Decided on November 30, 2018
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-98 K C

Metro Psychological Services, P.C., as Assignee of Michel Lesly, Appellant,

against

ELRAC, Inc., Doing Business as Enterprise Rent-A-Car, Respondent.


Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Brand, Glick & Brand, P.C. (Jason P. Bertuna of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 20, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s arguments as to defendant’s motion, the proof submitted by defendant was sufficient to demonstrate the proper mailing of the denial of claim form at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018

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