February 26, 2007

Vega Chiropractic, P.C. v Eveready Ins. Co. (2007 NY Slip Op 50363(U))

Headnote

The court considered whether the plaintiff, Vega Chiropractic, P.C., had established a prima facie case to recover assigned first-party no-fault benefits from the defendant, Eveready Insurance Company. The main issue decided was whether the lack of authentication of the assignor's signature constituted a defect, and if the defendant had demonstrated the existence of a triable issue of fact. The holding of the case was that the lack of authentication of the assignor's signature did not constitute a defect unless there was a statutory or regulatory requirement for the same. The court also held that the defendant's proof of mailing a request for independent medical examinations (IMEs) to the assignor, and the assignor's failure to appear, warranted the denial of the plaintiff's motion for summary judgment. The order in favor of the defendant was affirmed without costs.

Reported in New York Official Reports at Vega Chiropractic, P.C. v Eveready Ins. Co. (2007 NY Slip Op 50363(U))

Vega Chiropractic, P.C. v Eveready Ins. Co. (2007 NY Slip Op 50363(U)) [*1]

Vega Chiropractic, P.C. v Eveready Ins. Co.

2007 NY Slip Op 50363(U) [14 Misc 3d 142(A)]

Decided on February 26, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1800 K C.

Vega Chiropractic, P.C. a/a/o Dianne McLean, Appellant,
against
Eveready Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 28, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant concedes receipt of the claim forms which are the subject of this action. Defendant’s contention that plaintiff failed to establish its prima facie case because plaintiff did not demonstrate the existence of an authenticated assignment is without merit as “the lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same” (A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14, 16 [App Term, 2d & 11th Jud Dists 2005]). Since plaintiff established a prima facie case, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s opposing papers indicate that defendant mailed assignor a request that she appear for pre-claim independent medical examinations (IMEs), that assignor received the scheduling notice and failed to appear, that defendant timely sent (11 NYCRR 65-3.6 [b]), and assignor received, a follow-up IME scheduling notice, and that assignor again failed to appear. This proof sufficed to warrant the motion’s denial (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Pesce, P.J., Rios and Belen, JJ., concur. [*2]
Decision Date: February 26, 2007