May 15, 2012

Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U))

Headnote

The relevant facts considered by the court in this case were related to the denial of first-party no-fault benefits sought by Midwood Total Rehabilitation Medical, P.C. as Assignee of Jenny Carmen Hernandez, based on the failure of Hernandez to appear for scheduled independent medical examinations (IMEs). The main issue decided in this case was whether the denial of the claims by State Farm Mutual Automobile Ins. Co. was justified due to the failure of Hernandez to attend the scheduled IMEs. The holding of the court was that State Farm Mutual Automobile Ins. Co. had timely mailed the IME scheduling letters and the denial of claim forms, and had provided affidavits from its examining physician, chiropractor, and acupuncturist, all of whom stated that Hernandez had failed to appear for the scheduled IMEs. As a result, the court determined that State Farm had established its entitlement to judgment as a matter of law and granted their motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U))

Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U)) [*1]

Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co.

2012 NY Slip Op 50931(U) [35 Misc 3d 142(A)]

Decided on May 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 15, 2012

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1246 K C.

Midwood Total Rehabilitation Medical, P.C. as Assignee of JENNY CARMEN HERNANDEZ, Appellant, —
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered January 14, 2010. 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, without 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 and denied plaintiff’s cross motion for summary judgment.The affidavit by an employee of Independent Physical Exam Referrals, the entity which had scheduled the independent medical examinations (IMEs) involved herein on behalf of defendant, established that the IME scheduling letters had been timely mailed (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]). In addition, the affidavits executed by defendant’s claims examiner and claims support services supervisor demonstrated that the denial of claim forms, which denied the claims based upon the [*2]failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affirmations from its examining physician, chiropractor and acupuncturist, all of whom stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. 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]). Inasmuch as plaintiff submitted only an affirmation in opposition from its counsel, which failed to raise a triable issue of fact, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 15, 2012