October 8, 2013

Ranbow Supply of N.Y., Inc. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 51729(U))

Headnote

The main issue in this case was whether a provider could recover first-party no-fault benefits when the assignor failed to appear for scheduled independent medical examinations (IMEs). The court considered the fact that the defendant had mailed the IME scheduling letters to the correct address provided by its insured, and copies of the letters were also received by the assignor's attorney. The court held that the defendant had sufficiently demonstrated that it had addressed the letters to the correct address, and therefore the assignor's failure to appear for the IMEs was a valid reason for denying the plaintiff's motion for summary judgment. The order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at Ranbow Supply of N.Y., Inc. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 51729(U))

Ranbow Supply of N.Y., Inc. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 51729(U)) [*1]

Ranbow Supply of N.Y., Inc. v Progressive Northeastern Ins. Co.

2013 NY Slip Op 51729(U) [41 Misc 3d 129(A)]

Decided on October 8, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-186 K C.

Ranbow Supply of NY, Inc. as Assignee of JOVAN CLARK, Appellant, —
against
Progressive Northeastern Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered August 2, 2010. 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, finding that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

While plaintiff argues that defendant did not mail its IME scheduling letters to the correct address, defendant sufficiently demonstrated that it addressed the letters to plaintiff’s assignor, defendant’s insured, at the address provided to it by its insured. In addition, defendant demonstrated that copies of the IME scheduling letters had been addressed to, and received by, plaintiff’s assignor’s attorney (see Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 2013