August 8, 2014

Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51256(U))

Headnote

The court considered the facts that the plaintiff, Quality Psychological Services, P.C., was seeking to recover first-party no-fault benefits on behalf of its assignor, Maria De La Rosa, from New York Central Mutual Fire Insurance Company. The main issue decided was whether the defendant was entitled to summary judgment dismissing the complaint. The court held that the defendant had submitted sufficient evidence to establish that the scheduling letters for independent medical examinations (IMEs) had been timely mailed and that the plaintiff's assignor had failed to appear for the IMEs. The court also found that the denial of claim form had been timely mailed, and therefore, the defendant was entitled to summary judgment dismissing the complaint. The appellate term reversed the lower court's order and granted the defendant's motion for summary judgment.

Reported in New York Official Reports at Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51256(U))

Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51256(U)) [*1]

Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 51256(U) [44 Misc 3d 138(A)]

Decided on August 8, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2014

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2011-2131 K C

Quality Psychological Services, P.C. as Assignee of MARIA DE LA ROSA, 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 (Katherine A. Levine, J.), entered May 27, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s 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 so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the IME scheduling letters had been timely mailed to plaintiff’s assignor in accordance with that office’s standard mailing 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]). Defendant also submitted, among other things, an affidavit by the chiropractor who was to perform the chiropractic IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim form, which denied plaintiff’s claim based on plaintiff’s assignor’s nonappearance at 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). Consequently, defendant established its entitlement to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: August 08, 2014