December 27, 2012

Stanley Liebowitz, M.D., P.C. v Unitrin Preferred Ins. Co. (2012 NY Slip Op 52363(U))

Headnote

The court considered the fact that the defendant-insurer had timely and properly mailed notices for independent medical examinations (IMEs) to the assignor and his attorney, and that the assignor failed to appear. The main issue was whether the defendant-insurer was entitled to summary judgment dismissing the action for first-party no-fault benefits. The holding of the court was that the defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the complaint, and therefore the motion was granted and the complaint was dismissed. The plaintiff did not deny the assignor's nonappearance or raise a triable issue with respect to the mailing or reasonableness of the underlying notices.

Reported in New York Official Reports at Stanley Liebowitz, M.D., P.C. v Unitrin Preferred Ins. Co. (2012 NY Slip Op 52363(U))

Stanley Liebowitz, M.D., P.C. v Unitrin Preferred Ins. Co. (2012 NY Slip Op 52363(U)) [*1]

Stanley Liebowitz, M.D., P.C. v Unitrin Preferred Ins. Co.

2012 NY Slip Op 52363(U) [38 Misc 3d 128(A)]

Decided on December 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 27, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
12-427.

Stanley Liebowitz, M.D., P.C. a/a/o Cesar Aroca, Plaintiff-Respondent, – –
against
Unitrin Preferred Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered February 27, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered February 27, 2012, 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 the assignor and his attorney, 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 deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 27, 2012