December 28, 2011

Shore Med. Diagnostic, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52343(U))

Headnote

The court considered an appeal from a denial of a motion for summary judgment in a case involving a disputed claim for first-party no-fault benefits. The main issue was whether the defendant insurance company had established prima facie evidence that it had properly notified the policyholder of an independent medical examination (IME) and that the policyholder had failed to attend. The court held that the defendant's submissions had indeed established prima facie that it had mailed the notices of the IMEs and that the policyholder had failed to attend. The court reversed the lower court's decision, granted the motion for summary judgment, and dismissed the complaint. Therefore, the defendant insurance company was not liable to pay the first-party no-fault benefits claimed by the plaintiff medical provider.

Reported in New York Official Reports at Shore Med. Diagnostic, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52343(U))

Shore Med. Diagnostic, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52343(U)) [*1]

Shore Med. Diagnostic, P.C. v Praetorian Ins. Co.

2011 NY Slip Op 52343(U) [34 Misc 3d 131(A)]

Decided on December 28, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570519/11.

Shore Medical Diagnostic, P.C., a/a/o Gregory L. McClymont, Plaintiff-Respondent, – –
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Robert R. Reed, J.), entered February 25, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered February 25, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the 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 failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 28, 2011