Riu Chiropractic, P.C. v AutoOne Ins. Co. (2010 NY Slip Op 50653(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 3, 2009, deemed from a judgment of the same court entered March 4, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 3, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,099.94.

ORDERED that the judgment is reversed without costs, the order entered February 3, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the determination of the Civil Court with respect thereto.

In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, defendant submitted an affidavit by its litigation specialist which established that the letters scheduling the IMEs had been timely sent pursuant to defendant’s standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thereafter, defendant submitted a supplemental affirmation, pursuant to the instructions of the Civil Court, from its examining physician. The physician stated therein that plaintiff’s assignor had failed to appear for scheduled IMEs. As a result, defendant established its prima facie case. Accordingly, the judgment is reversed, the order entered February 3, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the [*2]complaint is granted.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: April 09, 2010