March 11, 2016

XVV, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50312(U))

Headnote

The insurer failed to establish timely mailing of the IME scheduling letters and therefore did not prove that the IMEs were properly scheduled. The provider sought assigned first-party no-fault benefits, and the insurer moved for summary judgment dismissing the complaint based on the assignor's failure to appear for IMEs. Although the insurer asserted timely and proper denial on that ground, its motion papers did not establish timely mailing of the scheduling letters. Without that proof, the nonappearance defense did not support summary judgment. The Appellate Term, Second Department, affirmed the order denying the insurer's motion.

Reported in New York Official Reports at XVV, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50312(U))

[*1]
XVV, Inc. v New York Cent. Mut. Fire Ins. Co.
2016 NY Slip Op 50312(U) [50 Misc 3d 146(A)]
Decided on March 11, 2016
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1451 K C
XVV, Inc. as Assignee of Jose Espinosa, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 19, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant’s motion.

Defendant’s motion papers failed to establish that the letters scheduling the IMEs of plaintiff’s assignor had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that defendant is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear at duly scheduled IMEs.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.


Decision Date: March 11, 2016

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