November 28, 2012

SK Prime Med. Supply, Inc. v Hertz Claim Mgt. Corp. (2012 NY Slip Op 52192(U))

Headnote

A provider sued Hertz entities for first-party no-fault benefits, and Hertz moved for summary judgment on the ground that the claim was premature because the assignor failed to appear for IMEs. Hertz relied on an affidavit from an employee of its scheduling contractor, who lacked personal knowledge of mailing dates and described the office practices only generally. The Appellate Term held Hertz failed to establish that the IME notices were properly addressed and mailed. It also noted the plaintiff raised triable issues through proof that the notices were misdelivered to the wrong address. The denial of summary judgment was affirmed.

Reported in New York Official Reports at SK Prime Med. Supply, Inc. v Hertz Claim Mgt. Corp. (2012 NY Slip Op 52192(U))

[*1]
SK Prime Med. Supply, Inc. v Hertz Claim Mgt. Corp.
2012 NY Slip Op 52192(U) [37 Misc 3d 138(A)]
Decided on November 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570296/12.

SK Prime Medical Supply, Inc., a/a/o Anthony Gumbs, Plaintiff-Respondent,

against

Hertz Claim Management Corp. d/b/a Hertz Rent A Car and Hertz Corporation, Defendant-Appellant.


Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered May 31, 2011, as denied its motion for summary judgment dismissing the complaint.


Per Curiam.

Order (Ruben Franco, J.), entered May 31, 2011, affirmed, with $10 costs.

We sustain so much of the order issued below as denied defendant’s motion for summary judgment dismissing this first-party no-fault action. While defendant contends that the claim for payment was premature because of plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), defendant failed to establish, prima facie, that the notices scheduling the IMEs were properly addressed and mailed. In this regard, defendant’s moving submission heavily relied on an affidavit submitted by an employee of the entity retained by defendant to schedule the IMEs in this matter. The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her office’s mailing practices and procedures. Thus, defendant “failed to establish that the practice and procedure was designed to ensure that the [notices] were addressed to the proper party and properly mailed” (Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]). In any event, plaintiff, in opposition, raised triable issues by way of proof tending to indicate that the IME notices were misdelivered to the wrong address.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 28, 2012