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Excel Radiology Service, Pc A/A/O Wilmer Centeno v. Utica Mutual Insurance Company

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 28, 2011

EXCEL RADIOLOGY SERVICE, PC A/A/O WILMER CENTENO,
PLAINTIFF-RESPONDENT, - -
v.
UTICA MUTUAL INSURANCE COMPANY,
DEFENDANT-APPELLANT.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered June 7, 2010, which denied its motion for summary judgment dismissing the complaint.

Per curiam.

Excel Radiology Serv., PC v Utica Mut. Ins. Co.

Decided on April 28, 2011

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ

Order (Raul Cruz, J.), entered June 7, 2010, affirmed, with $10 costs.

In this action to recover first-party no-fault medical benefits, defendant's motion for summary judgment was properly denied since it failed to establish, prima facie, that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]; cf. Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Given defendant's failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: April 28, 2011

20110428

© 1992-2011 VersusLaw Inc.



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