June 11, 2012

Yklik, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51066(U))

Headnote

The court considered the facts of a provider seeking to recover assigned first-party no-fault benefits from an insurance company. The insurance company had denied the benefits and moved for summary judgment to dismiss the complaint. The main issue decided was whether the insurance company had established its defense of the plaintiff's failure to appear at an independent medical examination (IME). The court held that the insurance company had failed to establish its defense based on the failure of the plaintiff's assignor to appear at an IME, as there was a discrepancy in the evidence presented by the insurance company. Therefore, the court affirmed the order denying the insurance company's motion for summary judgment.

Reported in New York Official Reports at Yklik, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51066(U))

Yklik, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51066(U)) [*1]

Yklik, Inc. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 51066(U) [35 Misc 3d 147(A)]

Decided on June 11, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2012

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

PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2010-3216 Q C.

Yklik, Inc. as Assignee of BEATRICE BEAUZILE, Respondent, —
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terence C. O’Connor, J.), dated October 21, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The Civil Court found, among other things, that defendant had submitted “sufficient evidence to establish its timely and proper denial,” and that “[t]he sole issue remaining for trial” is whether defendant established its defense of failure to appear at an independent
medical examination (IME). Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion for summary judgment, defendant submitted an affidavit by its no-fault litigation examiner, who stated, among other things, that defendant had requested that “National Claim Evaluations, Inc. . . . schedule an acupuncturist/ chiropractic IME of Plaintiff’s [*2]assignor.” Defendant did not submit an affidavit by an employee of National Claim Evaluations, Inc. to establish that the IME had been scheduled. Rather, defendant submitted an affidavit by an employee of Transcion Corporation, which managed all of the administrative requirements of Transcion Medical, P.C., who stated, among other things, that defendant had hired Transcion Medical, P.C. to schedule IMEs of the assignor. In view of the foregoing discrepancy, the Civil Court properly determined that defendant had failed to establish its defense based upon the failure of plaintiff’s assignor to appear at an IME.

Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 11, 2012