June 1, 2018

S & R Med., P.C. v ELRAC, Inc. (2018 NY Slip Op 50834(U))

Headnote

The self-insurer's summary judgment dismissal for the assignor's IME nonappearance was affirmed on mailing and nonappearance proof. The Appellate Term, Second Department, found proper mailing of the IME scheduling letters and the assignor's nonappearance established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., respectively.

Reported in New York Official Reports at S & R Med., P.C. v ELRAC, Inc. (2018 NY Slip Op 50834(U))

[*1]
S & R Med., P.C. v ELRAC, Inc.
2018 NY Slip Op 50834(U) [59 Misc 3d 150(A)]
Decided on June 1, 2018
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2703 K C

S & R Medical, P.C., Icon Chiropractic, P.C. and Acupuncture Healthcare Plaza, P.C., as Assignees of Zakir Danilov, Appellants,

against

ELRAC, Inc., Respondent.


Fuld & Karp, P.C. (David Karp of counsel), for appellants. Brand, Glick & Brand (Jason P. Bertuna of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 8, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by providers to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claim at issue based upon plaintiffs’ assignor’s failure to appear for scheduled independent medical examinations (IMEs).

Contrary to plaintiffs’ contentions, defendant’s proof sufficiently established 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 plaintiffs’ 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: June 01, 2018

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