March 11, 2016

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

Headnote

The relevant facts the court considered in this case were that the defendant insurer moved for summary judgment to dismiss the complaint brought by the plaintiff provider, who was seeking to recover assigned first-party no-fault benefits on behalf of Jose Espinosa. The insurer argued that it had timely and properly denied the claim because the plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). The main issue decided by the court was whether the insurer had properly scheduled the IMEs and whether they had been timely mailed. The holding of the court was that the defendant had failed to establish that the letters scheduling the IMEs had been timely mailed, and therefore had not demonstrated that the IMEs had been properly scheduled. As a result, the court affirmed the order denying the insurer's motion for summary judgment.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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