January 29, 2010

Park Slope Med. & Surgical Supply, Inc. v Chubb Group of Ins. (2010 NY Slip Op 50151(U))

Headnote

The relevant facts in this case involved a medical supply company seeking to recover no-fault benefits from an insurance company. The medical supply company moved for summary judgment, but the insurance company opposed the motion on the grounds that the patient had failed to appear for scheduled independent medical examinations (IMEs). The insurance company argued that it had timely denied the claims based on this failure. The main issue decided by the court was whether the insurance company's opposition was sufficient to establish that the patient had not appeared for the IMEs, thus justifying the denial of the claims. The court held that the insurance company's affidavits were insufficient to establish that the patient had failed to appear for the IMEs, and as a result, the insurance company failed to raise a triable issue of fact. Therefore, the court affirmed the judgment in favor of the medical supply company.

Reported in New York Official Reports at Park Slope Med. & Surgical Supply, Inc. v Chubb Group of Ins. (2010 NY Slip Op 50151(U))

Park Slope Med. & Surgical Supply, Inc. v Chubb Group of Ins. (2010 NY Slip Op 50151(U)) [*1]

Park Slope Med. & Surgical Supply, Inc. v Chubb Group of Ins.

2010 NY Slip Op 50151(U) [26 Misc 3d 135(A)]

Decided on January 29, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 29, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-2187 Q C.

Park Slope Medical and Surgical Supply, Inc. as assignee of BENNY SCIUBBA, Respondent,
against
Chubb Group of Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 28, 2008, deemed from a judgment of the same court entered November 26, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 28, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,590.25.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that it had timely denied plaintiff’s claims on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). Defendant appeals from the order of the Civil Court granting plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavits submitted by defendant in opposition to plaintiff’s motion for summary judgment were insufficient to establish that plaintiff’s assignor had not appeared for IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, defendant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 29, 2010