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Neomy Medical, P.C. As Assignee of Lionel Merilien v. New York Central Mutual Fire 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

NEOMY MEDICAL, P.C. AS ASSIGNEE OF LIONEL MERILIEN,
RESPONDENT,
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 (Kenneth P. Sherman, J.), entered March 30, 2010.

Neomy Med., P.C. v New York Cent. Mut. Fire 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This opinion is uncorrected and will not be published in the printed Official Reports.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 granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint.

In support of its cross motion for summary judgment, defendant submitted an affidavit of an employee of Crossland Medical Services, P.C. (Crossland), the entity which had scheduled the independent medical examinations (IMEs) involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland's standard office practices and procedures (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]). In addition, an affidavit executed by defendant's litigation examiner demonstrated that the denial of claim forms, which denied the claims based upon the failure of plaintiff's assignor to appear for the IMEs, had been timely mailed pursuant to defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit from its examining chiropractor/acupuncturist, who stated that plaintiff's assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as plaintiff submitted only an affirmation from its counsel, which affirmation failed to raise a triable issue of fact, defendant's cross motion for summary judgment dismissing the complaint should have been granted. In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

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

Decision Date: December 16, 2011

20111216

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