December 16, 2011

Metrostar, Inc. v Electric Ins. Co. (2011 NY Slip Op 52277(U))

Headnote

The court considered the fact that Metrostar, Inc. was seeking to recover first-party no-fault benefits that were assigned to it, and that Electric Insurance Company denied the claims on the basis that Metrostar's assignor failed to attend scheduled independent medical examinations. The main issue decided was whether Electric Insurance Company was entitled to summary judgment dismissing the complaint based on the failure of Metrostar's assignor to attend the IMEs. The court held that Electric Insurance Company was not entitled to summary judgment because the affidavits submitted were insufficient to establish the proper mailing of the IME scheduling letters. Therefore, the order denying Electric Insurance Company's cross motion for summary judgment was affirmed.

Reported in New York Official Reports at Metrostar, Inc. v Electric Ins. Co. (2011 NY Slip Op 52277(U))

Metrostar, Inc. v Electric Ins. Co. (2011 NY Slip Op 52277(U)) [*1]

Metrostar, Inc. v Electric Ins. Co.

2011 NY Slip Op 52277(U) [34 Misc 3d 126(A)]

Decided on December 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-930 K C.

Metrostar, Inc. as Assignee of NATASHA TORRE, Respondent,
against
Electric Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered November 24, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment.

Although defendant denied the claims on the ground that plaintiff’s assignor had failed to attend scheduled independent medical examinations (IMEs), the affidavits submitted by defendant were insufficient to establish the proper mailing of the IME scheduling letters (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]). As a result, defendant was not entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011