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Arco Medical Ny, P.C. and Janaa Physical v. New York Central Mutual Fire Insurance Company

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


February 14, 2011

ARCO MEDICAL NY, P.C. AND JANAA PHYSICAL
THERAPY, P.C. AS ASSIGNEES OF JERMAINE ROUSE,
RESPONDENTS,
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), dated June 23, 2009. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiffs' cross motion for summary judgment.

ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co.

Decided on February 14, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2011

PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ

ORDERED that the order is modified by providing that plaintiffs' cross motion for summary judgment is denied; as so modified, the order 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 based upon the failure of plaintiffs' assignor to attend independent medical examinations (IMEs) which were scheduled by Crossland Medical Services, P.C. (Crossland). Plaintiffs cross-moved for summary judgment. The Civil Court denied defendant's motion and granted plaintiffs' cross motion, finding that defendant had failed to establish the mailing of the IME scheduling letters. The instant appeal by defendant ensued.

The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland's standard office practices and procedures or that the affiants had personally mailed the scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied defendant's motion for summary judgment.

However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs' supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action (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]). As a result, plaintiffs did not establish their prima facie case (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Steinhardt, J.P., Pesce and Weston, JJ., concur. Decision Date: February 14, 2011

20110214

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