SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
May 23, 2011
LDE MEDICAL SERVICES, P.C. AS ASSIGNEE OF ELIZABETH GILMORE,
INTERBORO INSURANCE COMPANY,
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 14, 2009, deemed from a judgment of the same court entered September 14, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 14, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $262.66.
LDE Med. Servs., P.C. v Interboro Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 23, 2011
PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ
ORDERED that the judgment is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. In support of its cross motion and in opposition to plaintiff's motion, defendant asserted that it had timely denied plaintiff's claims on the ground that the assignor had failed to attend duly scheduled independent medical examinations (IMEs) and that plaintiff's motion for summary judgment was premature because plaintiff had failed to respond to defendant's discovery demands. The Civil Court granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment, finding that since defendant's first IME scheduling letter had been mailed prior to defendant's receipt of plaintiff's claim forms, it was a nullity and, as a result, defendant had failed to establish that it had sent a valid IME scheduling letter and a follow-up scheduling letter. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).
Contrary to the Civil Court's determination, "appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim form is submitted" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 ). As a result, although the first IME scheduling letter was sent to the assignor before defendant received plaintiff's claim forms, the scheduling letter was not a nullity (id.).
However, since defendant's moving papers did not contain evidence in
admissible form from anyone with personal knowledge of the assignor's
nonappearances at the IMEs, defendant failed to establish that the
assignor had failed to appear at the IMEs (see id.; Vista Surgical
Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op
51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent
Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]).
Although defendant annexed to its reply papers affirmations from each of the
doctors who were to perform the assignor's IMEs, in which they attested to the
nonappearance of the assignor at the scheduled IMEs, said proof was improperly
submitted for the first time in defendant's reply papers (see Bednoski v County of Suffolk,
67 AD3d 616 ;
Haggerty v Quast, 48 AD3d 629 ; Jefferson v Netusil, 44 AD3d 621
). Consequently, defendant's cross motion for summary judgment
was properly denied.
While defendant argues that plaintiff's motion for summary judgment should have been denied as premature since plaintiff failed to provide responses to defendant's discovery demands, defendant failed to show that discovery was needed in order to establish the existence of a triable issue of fact (see CPLR 3212 [f]; Delta Diagnostic Radiology, P.C. v Inteboro Ins Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, plaintiff's motion for summary judgment was properly granted.
In light of the foregoing, the judgment is affirmed.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: May 23, 2011
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