July 26, 2012

Searay Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51383(U))

Headnote

The court considered the facts that the defendant-insurer had timely and properly mailed notices for independent medical examinations to the plaintiff's assignor, and the assignor failed to appear for the examinations. The main issue decided was whether the defendant-insurer was entitled to summary judgment dismissing the action for first-party no-fault benefits. The court held that the defendant-insurer made a prima facie showing of entitlement to summary judgment by establishing proper mailing of the notices for the examinations and the assignor's failure to appear. The court found that the plaintiff did not raise a triable issue in opposition to the defendant's showing, and therefore granted the defendant's motion for summary judgment and dismissed the complaint.

Reported in New York Official Reports at Searay Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51383(U))

Searay Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51383(U)) [*1]

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

2012 NY Slip Op 51383(U) [36 Misc 3d 137(A)]

Decided on July 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Schoenfeld, Shulman,, JJ
570663/11.

Searay Medical, P.C. a/a/o Rhadona A. Thompson, Plaintiff-Respondent, – –
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Ann E. O’Shea, J.), entered July 15, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ann E. O’Shea, J.), entered July 15, 2011, reversed, with $10 costs, motion granted 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) 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], lv denied 17 NY3d 705 [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 (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 26, 2012