February 27, 2014

Stracar Med. Servs. v New York Cent. Mut. Ins. Co. (2014 NY Slip Op 50263(U))

Headnote

The relevant facts considered by the court in this case were that the defendant insurance company denied payment for first-party no-fault benefits to the plaintiff, Stracar Medical Services, for the medical treatment of Inma Villa. The main issue decided by the court was whether the insurance company was entitled to summary judgment dismissing the complaint based on the assignor's failure to appear at scheduled independent medical examinations (IMEs). The holding of the court was that the insurance company demonstrated its entitlement to summary judgment by submitting evidence that the notices scheduling the IMEs were timely and properly mailed, and that the assignor failed to appear at the scheduled IMEs. The court found that the plaintiff did not raise a triable issue with respect to the assignor's nonappearance or the mailing and reasonableness of the notices, and therefore the defendant's motion for summary judgment dismissing the complaint was granted in full.

Reported in New York Official Reports at Stracar Med. Servs. v New York Cent. Mut. Ins. Co. (2014 NY Slip Op 50263(U))

Stracar Med. Servs. v New York Cent. Mut. Ins. Co. (2014 NY Slip Op 50263(U)) [*1]

Stracar Med. Servs. v New York Cent. Mut. Ins. Co.

2014 NY Slip Op 50263(U) [42 Misc 3d 143(A)]

Decided on February 27, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr.,JJ
570008/14.

Stracar Medical Services, a/a/o Inma Villa, Plaintiff-Respondent,
against
New York Central Mutual Insurance Company, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. D’Auguste, J.), entered March 4, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. D’Auguste, J.), entered March 4, 2013, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted in toto. The Clerk is directed to enter judgment accordingly.

Defendant-insurer demonstrated its entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting the affidavit of its no-fault litigation examiner demonstrating that the notices scheduling the assignor’s independent medical examinations (IMEs) were timely and properly mailed, as well as the sworn affidavits of the scheduled examining physician and her employee that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013] American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically 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 Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424 [2013] see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: February 27, 2014