May 3, 2019

Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U))

Headnote

The Court considered the denial of plaintiff's motion for summary judgment and the granting of defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was that the defendant's proof established the proper mailing of the Independent Medical Examination (IME) scheduling letters and that the plaintiff's assignor had failed to appear for the scheduled IMEs. The holding of the case was that the order denying plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint was affirmed. Therefore, the defendant was not liable to pay the first-party no-fault benefits to the plaintiff.

Reported in New York Official Reports at Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U))

Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U)) [*1]

Preferred Ortho Prods., Inc. v Hereford Ins. Co.

2019 NY Slip Op 50688(U) [63 Misc 3d 146(A)]

Decided on May 3, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-283 Q C

Preferred Ortho Products, Inc., as Assignee of Vasquez, Luis, Appellant,
against
Hereford Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rubin & Nazarian (Tasnim Hassanali of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered November 9, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s arguments, defendant’s proof sufficiently established the proper mailing of the IME scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019