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Trimed Medical Supply, Inc. as Assignee of LESLEY LOUIZAIRE, Appellant v. ELRAC

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


November 26, 2010

TRIMED MEDICAL SUPPLY, INC. AS ASSIGNEE OF LESLEY LOUIZAIRE, APPELLANT,
v.
ELRAC, INC. AND ENTERPRISE RENT-A-CAR, RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered November 25, 2008.

The opinion of the court was delivered by: Present: Pesce, P.J.,

Trimed Med. Supply, Inc. v ELRAC, Inc.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2010

RIOS and STEINHARDT, JJ

The order, insofar as appealed from as limited by the brief, granted defendants' motion for summary judgment.

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, defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court granted defendants' motion for summary judgment and implicitly denied plaintiff's cross motion for summary judgment. As limited by its brief, plaintiff appeals from so much of the order as granted defendants' motion for summary judgment.

The sole issue raised by plaintiff on appeal is whether defendants established that plaintiff's assignor failed to appear for scheduled independent medical examinations (IMEs). Contrary to plaintiff's contention, the affidavit submitted by the doctor who was to perform the IMEs of plaintiff's assignor established that the assignor failed to appear for IMEs in the doctor's office, which was located at the address set forth in the IME scheduling letters (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur. Decision

20101126

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