May 3, 2019

Serge Chiropractic Servs., P.C. v Farmington Cas. Co. (2019 NY Slip Op 50698(U))

Headnote

The insurer's motion for summary judgment dismissing the claims based on the assignor's failure to appear for IMEs was upheld. The Appellate Term, Second Department, affirmed, finding sufficient proof of proper mailing of the scheduling letters under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., rejecting the provider's challenges.

Reported in New York Official Reports at Serge Chiropractic Servs., P.C. v Farmington Cas. Co. (2019 NY Slip Op 50698(U))

[*1]
Serge Chiropractic Servs., P.C. v Farmington Cas. Co.
2019 NY Slip Op 50698(U) [63 Misc 3d 147(A)]
Decided on May 3, 2019
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-805 K C

Serge Chiropractic Services, P.C., as Assignee of Orane Robinson, Appellant,

against

Farmington Casualty Company, Respondent.


Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 9, 2016. 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 a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s arguments, defendant’s proof sufficiently established the 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 plaintiff’s 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. JJ., concur.



ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019

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