December 24, 2012

Seacoast Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52354(U))

Headnote

The relevant facts considered by the court were that the defendant-insurer had timely and properly mailed notices for independent medical examinations (IMEs) and examinations under oath (EUOs) to the plaintiff's assignor, and the assignor failed to appear. The main issue decided was whether the defendant-insurer was entitled to summary judgment dismissing the action for first-party no-fault benefits based on the assignor's failure to appear for the IMEs and EUOs. The holding of the court was that the defendant-insurer made a prima facie showing of entitlement to summary judgment, and the plaintiff did not raise a triable issue with respect to the assignor's nonappearance or the mailing and reasonableness of the underlying notices. Therefore, the motion for summary judgment was granted and the complaint was dismissed.

Reported in New York Official Reports at Seacoast Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52354(U))

Seacoast Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52354(U)) [*1]

Seacoast Med., P.C. v Praetorian Ins. Co.

2012 NY Slip Op 52354(U) [38 Misc 3d 127(A)]

Decided on December 24, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570724/12.

Seacoast Medical, P.C., a/a/o Tabari Salmon, Plaintiff-Respondent,
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated February 17, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), dated February 17, 2012, insofar as appealed from, reversed, without costs, motion granted in toto and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) and examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 24, 2012