Ser Sano, Inc. v Nationwide Gen. Ins. Co. (2017 NY Slip Op 51719(U))

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2201 K C

Gary Tsirelman, P.C. (Sebastian Melo, Esq.), for appellant. Gialleonardo, McDonald & Turchetti (Yael Ryzowy, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.) entered August 14, 2014. The order denied plaintiff’s motion for leave to renew its opposition to defendant’s motion for summary judgment dismissing the complaint, which had been granted in a prior order of the same court entered March 7, 2013.

ORDERED that the order entered August 14, 2014 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). Upon denying defendant’s motion, the Civil Court, by order entered March 7, 2013, found, in effect, pursuant to CPLR 3212 (g), that defendant had established the generation of the IME scheduling letters and NF-10s, and that plaintiff’s assignor had failed to appear for IMEs. Plaintiff subsequently moved for leave to renew its opposition to defendant’s motion, based upon a trial transcript from an unrelated case, which transcript set forth that the name that defendant’s IME scheduling letters said to contact to reschedule the IMEs, Lynn Carter, was a pseudonym—there was no such employee—and that this was a fact which, plaintiff asserted, would change the prior [*2]determination since, in the instant case, plaintiff’s assignor was also instructed to contact Lynn Carter if plaintiff’s assignor needed to reschedule the IMEs. By order entered August 14, 2014, the Civil Court denied plaintiff’s motion.

For the reasons stated in Brand Med. Supply, Inc., as Assignee of Jeffrey Ferguson v ELRAC, Inc. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2323 K C], decided herewith), the order entered August 14, 2014 is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.