October 23, 2009

Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52208(U))

Headnote

The main issue in this case was whether the defendant, GEICO Ins. Co., was entitled to summary judgment dismissing the complaint brought by Radiology Today, P.C. as the assignee of Charles Rawlins, to recover assigned first-party no-fault benefits. The court considered the fact that the plaintiff's assignor had failed to appear for independent medical examinations (IMEs), and the defendant had moved for summary judgment based on this failure. The defendant submitted evidence that the IME notices were properly addressed and mailed, and the medical professionals who were to perform the IMEs confirmed that the plaintiff's assignor failed to appear. The court ultimately held that the defendant's unopposed motion for summary judgment dismissing the complaint should have been granted.

Reported in New York Official Reports at Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52208(U))

Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52208(U)) [*1]

Radiology Today, P.C. v GEICO Ins. Co.

2009 NY Slip Op 52208(U) [25 Misc 3d 133(A)]

Decided on October 23, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1592 RI C.

Radiology Today, P.C. as assignee of CHARLES RAWLINS, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered July 3, 2008. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without 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 moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). The Civil Court denied defendant’s unopposed motion on the ground that defendant had failed “to show [that] the IME notices were mailed to [the] claimant.”

In support of its motion, defendant submitted the affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently set forth the standard office practice and procedure for the generation and mailing of IME notices designed to ensure that said notices were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff’s assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s unopposed motion for summary judgment dismissing the complaint should have been granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 23, 2009