Vista Surgical Supplies, Inc. v New York Cent. Ins. Co. (2007 NY Slip Op 50165(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered October 13, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

In opposition to plaintiff’s motion, defendant’s no-fault litigation examiner stated that defendant’s denial was based upon plaintiff’s assignor’s nonattendance at independent medical examinations (IMEs), requests for which were made prior to defendant’s receipt of the claim form. As plaintiff correctly asserted, defendant was required to establish by proof in admissible form that the IME notifications were mailed and that plaintiff’s assignor failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]). The record reflects that Allegiance Health was responsible for scheduling the IMEs and for mailing the IME notices. Since defendant’s examiner was not [*2]responsible for the scheduling of IMEs or for the mailing of IME notifications, her affidavit was insufficient to establish proper mailing of the IME request letters or plaintiff’s assignor’s failure to appear for the scheduled IMEs. Accordingly, defendant failed to raise a triable issue of fact.

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 31, 2007