September 4, 2007

Midisland Med., PLLC v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51983(U))

Headnote

The relevant facts in this case involved a dispute over first-party no-fault benefits, where the plaintiff sought to recover assigned benefits from the defendant insurance company. The main issue decided was whether the defendant had timely denied the plaintiff's claims based on the failure of the plaintiff's assignor to appear for independent medical examinations. The court held that the defendant failed to establish that the denial of claim forms were timely mailed, and as a result, the plaintiff's motion for summary judgment was granted, and a judgment was entered in favor of the plaintiff. The court did not address the issue of the plaintiff's establishment of its prima facie case, as the defendant failed to raise a triable issue of fact with regard to the claims. The judgment was affirmed on other grounds.

Reported in New York Official Reports at Midisland Med., PLLC v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51983(U))

Midisland Med., PLLC v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51983(U)) [*1]

Midisland Med., PLLC v New York Cent. Mut. Ins. Co.

2007 NY Slip Op 51983(U) [17 Misc 3d 130(A)]

Decided on September 4, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1356 Q C.

Midisland Medical, PLLC a/a/o JEFF CAYOT, Respondent,
against
New York Central Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered May 4, 2006, deemed an appeal from a judgment entered June 21, 2006 (see CPLR 5501 [c]). The judgment, entered upon the May 4, 2006 order which granted plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,302.30.

Judgment affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that it timely denied plaintiff’s claims based upon the failure of plaintiff’s assignor to appear for independent medical examinations. The court granted plaintiff’s motion, holding that defendant
failed to establish that the denial of claim forms were timely mailed. Thereafter a judgment was entered.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto. While defendant denied these claims based upon the assignor’s failure to appear for scheduled independent medical examinations, defendant did not submit an affidavit from someone with personal knowledge regarding the assignor’s failure to appear. As a result, defendant failed to raise a triable issue of fact with [*2]regard to said claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; First Help Acupuncture, P.C. v Progressive Northeastern Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51167[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the judgment is affirmed, albeit on other grounds.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007