August 31, 2009

Vega Chiropractic, P.C. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52536(U))

Headnote

The relevant facts the court considered in this case were related to a provider seeking to recover assigned first-party no-fault benefits from an insurance company. The main issue decided was whether the provider's assignor failed to attend scheduled chiropractic/acupuncture independent medical examinations (IMEs) and if the letters scheduling said IMEs were timely sent. The holding of the case was that the defendant's motion for summary judgment was granted and the plaintiff's cross motion for summary judgment was denied. The court found that the defendant's motion for summary judgment established that the assignor failed to attend scheduled IMEs and that the letters scheduling the IMEs were timely sent, therefore properly granting defendant's motion for summary judgment and denying plaintiff's cross motion for summary judgment.

Reported in New York Official Reports at Vega Chiropractic, P.C. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52536(U))

Vega Chiropractic, P.C. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52536(U)) [*1]

Vega Chiropractic, P.C. v Clarendon Natl. Ins. Co.

2009 NY Slip Op 52536(U) [25 Misc 3d 144(A)]

Decided on August 31, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2008-1575 K C.

Vega Chiropractic, P.C. as assignee of TAMIKA CORNETT, Appellant,
against
Clarendon National Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered April 24, 2008. The order granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment.Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Contrary to plaintiff’s contention, defendant’s motion for summary judgment established that plaintiff’s assignor failed to attend scheduled chiropractic/acupuncture independent medical examinations (IMEs) and that the letters scheduling said IMEs were timely sent pursuant to the standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff’s remaining contention lacks merit.

Accordingly, we find that the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]) and denied plaintiff’s cross motion for summary judgment.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: August 31, 2009