SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), dated January 21, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment
dismissing the complaint and denying plaintiff’s cross motion for summary judgment.

Defendant demonstrated that it had timely mailed the NF-10 denial of claim forms based upon its standard office practices and procedures (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant’s affirmed peer review report set forth a factual basis and medical rationale for the peer reviewer’s conclusion that there was a lack of medical necessity for the subject medical supplies. Plaintiff challenges defendant’s peer reviewer’s reliance on various medical records. Some of the records were prepared by plaintiff and, accordingly, plaintiff may not challenge the reliability of those records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). In addition, contrary to plaintiff’s assertion, the fact that defendant’s [*2]peer reviewer took into consideration medical records of other providers in formulating his opinion does not render the peer review report inadmissible (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co,, 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Inasmuch as plaintiff failed to rebut defendant’s showing, defendant was entitled to summary judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). We note that plaintiff’s remaining contentions are either unpreserved or lack merit.

Accordingly, the order is affirmed.

Pesce, P.J., and Weston, J., concur.

Rios, J., dissents in part and concurs in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and RIOS, JJ.
PARSONS MEDICAL SUPPLY, INC.
as Assignee of MARIE JOSEPH,

Appellant,

-against-

NO. 2010-1201 K C

DECIDED
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY, [*3]

Respondent.

Rios, J., dissents in part and concurs in part and votes to modify the order by providing that defendant’s motion for summary judgment is denied in the following memorandum:

The affidavit of defendant’s “litigation representative” in my opinion fails to establish a procedure to ensure the mailing of the denial. The affidavit indicates that the denial envelope is placed in a “pick up” bin, from where it is taken to the mailroom, where postage is affixed, and subsequently mailed. I find the absence of an affidavit from someone familiar with the mailroom procedures is fatal to a claim of timely denial.

Accordingly, I would modify the order by providing that defendant’s motion for summary judgment is denied.

Plaintiff’s cross motion was properly denied. The attorney’s affirmation was insufficient to establish plaintiff’s entitlement to judgment as a matter of law.
Decision Date: November 30, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered September 22, 2009. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved by order to show cause to dismiss the complaint pursuant to CPLR 3211 (a) (2) and to stay the trial pending resolution of the motion. The Civil Court granted a stay pending determination of the motion and, on the return date, the parties stipulated to a motion schedule with a new return date. As plaintiff submitted no papers in opposition to defendant’s motion by the new return date, the order granting defendant’s motion to dismiss the complaint must be deemed to have been entered upon default, from which no appeal lies by the defaulting party (CPLR 551 see Benitez v Olson, 29 AD3d 503 [2006]; Macik v Stutman, 21 Misc 3d 144[A], 2008 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, plaintiff’s appeal is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: November 30, 2011

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2011

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, New York City (Yilo J. Kang of counsel), for appellant. Law Office of Emilia Rutigliano, Brooklyn (Jonathan R. Vitarelli of counsel), for respondent.

{**34 Misc 3d at 30} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a previously entered order, was whether the medical equipment supplied to plaintiff’s assignor was medically necessary. Prior to the commencement of the nonjury trial, plaintiff moved “to preclude defendant’s doctor based on an inability of defendant” to, in essence, establish the reliability of the medical records reviewed by defendant’s peer review doctor. The Civil Court ruled that defendant’s doctor would not be permitted to testify as to the contents of the medical records he had reviewed. Thus, the court opined, “the peer review doctor could not testify as to the medical basis for his opinion that the services [sic] were not medically necessary.” Accordingly, the Civil Court granted plaintiff’s motion for a directed verdict and entered judgment for plaintiff in the principal sum of $1,142.25.

Defendant’s doctor should have been permitted to testify as to his medical opinion regarding the medical necessity of the equipment at issue. Although defendant’s doctor had reviewed medical records that had been submitted to defendant by the assignor’s various health care providers, the purpose of defendant’s doctor’s testimony was not to establish, for example, the injury to plaintiff’s assignor or to prove that the assignor had received the equipment for which plaintiff is billing in this case (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; cf. e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).{**34 Misc 3d at 31} It is not defendant’s burden to prove these facts. Defendant’s position in this litigation was that, assuming that the contents of all of the records [*2]were true, including the statements as to the assignor’s alleged injuries, there was, nonetheless, still no medical necessity for the equipment provided to the assignor. To that extent, defendant’s doctor should have been permitted to testify as to the contents of the record he had reviewed. However, as defendant’s doctor did not have to establish the truth of the facts set forth in those records, defendant did not have to establish the reliability of the assignor’s medical records, and plaintiff’s objection lacked merit. Accordingly, defendant’s doctor should have been allowed to testify as to his opinion that the equipment was not medically necessary.

We note that plaintiff, who had every opportunity to employ discovery to obtain all the medical records reviewed by defendant’s doctor, was free to, among other things, use such records to impeach the witness to the extent plaintiff considered defendant’s witness’s characterization of the contents of those records inaccurate. Similarly, plaintiff was free to cross-examine the witness as to his conclusion that the equipment was not medically necessary, or to offer rebuttal witnesses.

Finally, we further note that, to the extent the documents objected to by plaintiff were plaintiff provider’s own medical records, plaintiff could not, in any event, have objected to their admissibility on the ground that such records are not professionally reliable (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Steinhardt, J.P., Pesce and Weston, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered April 29, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted, among other things, a sworn peer review report which set forth the factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Defendant’s showing that such services were not medically necessary was not rebutted by plaintiff. In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 14, 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 appeals from so much of an order as denied its motion for summary judgment dismissing the complaint.

Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (see A. Khodadadi Radiology P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]), the affidavit of plaintiff’s treating physician submitted in opposition to defendant’s motion was sufficient to demonstrate that there is a triable issue of fact as to medical necessity (cf. Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th, & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is affirmed. Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 5, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint. Contrary to plaintiff’s sole contention on appeal, defendant’s peer review report was sufficient to establish defendant’s entitlement to summary judgment on the ground of lack of medical necessity (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered January 15, 2010. The order, insofar as appealed from as limited by the brief, implicitly granted the branch of plaintiff’s motion seeking an order finding, for all purposes in the action, that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of plaintiff’s motion seeking an order finding, for all purposes in the action, that plaintiff had established its prima facie case is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as implicitly granted the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action.

Plaintiff’s motion for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that it had established its prima facie case for all purposes in the action, was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures so as to establish that the claim forms annexed to plaintiff’s moving papers were admissible under the business records exception to the hearsay rule (CPLR 4518). As a result, the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action should have been denied (see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; see also [*2]Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered December 11, 2009. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the claims in the sums of $323.25 and $450.77 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied its motion for summary judgment. This action involves eight claim forms for services provided to plaintiff’s assignor.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

The affidavit submitted by plaintiff’s billing clerk was sufficient to establish that the claim forms which sought to recover the sums of $323.25 and $450.77, and which were annexed [*2]to plaintiff’s moving papers, were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The affidavit also established that these claims were mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and that defendant had failed to pay or deny the claims within the requisite 30-day period. Consequently, plaintiff established its prima facie entitlement to summary judgment on these claims (see Westchester Med. Ctr., 78 AD3d 1168), and the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Inasmuch as defendant merely stated that it had never received the claim forms, defendant failed to raise a triable issue of fact, and plaintiff should have been awarded summary judgment on these two claims (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]).

As to the claims seeking reimbursement in the sums of $129.28 and $71.49, while plaintiff made a prima facie showing of its entitlement to summary judgment on these claims, the affidavit submitted by defendant in opposition to plaintiff’s motion was sufficient to establish that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant raised a triable issue of fact (see Zuckerman, 49 NY2d 557; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]), and plaintiff’s motion for summary judgment was properly denied with respect to these two claims.

Finally, as to the claims seeking reimbursement in the sums of $394.73, $193.95, $531.64 and $258.56, plaintiff failed to demonstrate that defendant had not either paid or denied the claims within the requisite 30-day period, or that defendant had issued timely denials of claims that were conclusory, vague or without merit as a matter of law. Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment on these four claims (see Insurance Law § 5106 [a]; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the claims in the sums of $323.25 and $450.77 are granted.

Pesce, P.J., and Weston, J., concur.

Rios, J., concurs in a separate memorandum.

Rios, J., concurs in the following memorandum:

While I disagree with the sufficiency of defendant’s affidavit attesting to the mailing of the subject denials, I am constrained to concur based upon the Appellate Division’s acceptance of a similar affidavit (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, proof of the mailing of the denials predicated upon a lack of medical [*3]necessity constitutes a valid basis to grant defendant’s motion for summary judgment. I disagree with the majority’s reliance on Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (78 AD3d 1168 [2010]), as there is no evidence that a partial payment was made in this case.
Decision Date: November 04, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 24, 2009, deemed from a judgment of the same court entered January 27, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 24, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,937.25.

ORDERED that the judgment is reversed, without costs, the order entered December 24, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered December 24, 2009, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered. We deem defendant’s appeal from the order to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

In support of its cross motion, defendant submitted an affidavit of the president of Media Referral Inc., the independent medical review service retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with her company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., [*2]50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit of the chiropractor who was retained to perform the IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims division employee demonstrated that after defendant had received requested verification, the denial of claim forms, which denied plaintiff’s claims based
upon plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s claims based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

Accordingly, the judgment is reversed, the order is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 21, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 21, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant established prima facie that it mailed the notices of independent medical examinations (IME) to the assignor and his attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 02, 2011