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Metrostar, Inc. As Assignee of Natasha Torre v. Electric Insurance Company

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


December 16, 2011

METROSTAR, INC. AS ASSIGNEE OF NATASHA TORRE,
RESPONDENT,
v.
ELECTRIC INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered November 24, 2009.

Metrostar, Inc. v Electric Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2011

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

The order, insofar as appealed from, denied defendant's cross 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 cross motion for summary judgment.

Although defendant denied the claims on the ground that plaintiff's assignor had failed to attend scheduled independent medical examinations (IMEs), the affidavits submitted by defendant were insufficient to establish the proper mailing of the IME scheduling letters (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]). As a result, defendant was not entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: December 16, 2011

20111216

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