December 16, 2011

Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))

Headnote

The main issue in this case was whether the defendant was entitled to summary judgment in a lawsuit brought by the plaintiff seeking to recover first-party no-fault benefits. The defendant appealed the trial court's decision to grant summary judgment to the plaintiff and deny the defendant's cross motion for summary judgment to dismiss the complaint. The court considered evidence submitted by the defendant, including an affidavit from an employee of Crossland Medical Services, P.C. and an affidavit from the defendant's litigation examiner, which established that the scheduling letters for independent medical examinations and the denial of claim forms had been timely mailed and that the plaintiff's assignor had failed to appear for the scheduled examinations. As a result, the court held that the defendant had established its entitlement to judgment as a matter of law and reversed the trial court's decision, granting the defendant's cross motion for summary judgment and dismissing the complaint.

Reported in New York Official Reports at Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))

Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U)) [*1]

Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co.

2011 NY Slip Op 52279(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2010-1097 K C.

Neomy Medical, P.C. as Assignee of LIONEL MERILIEN, 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 (Kenneth P. Sherman, J.), entered March 30, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is denied and defendant’s cross 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 an order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion for summary judgment, defendant submitted an affidavit of 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]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the denial of claim forms, which denied the claims based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit from its examining chiropractor/acupuncturist, who 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 from its counsel, which affirmation failed to raise a triable issue of [*2]fact, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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