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Quality Psychological Services, P.C. As Assignee of andrew Martinez v. Auto One Insurance Company

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


December 16, 2011

QUALITY PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF ANDREW MARTINEZ,
APPELLANT,
v.
AUTO ONE INSURANCE COMPANY, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 23, 2010.

Quality Psychological Servs., P.C. v Auto One Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order denied plaintiff's motion for summary judgment.

ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment is granted and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment. The Civil Court found that plaintiff had established its prima facie case and that the only issue for trial was defendant's defense that plaintiff's assignor had failed to appear for independent medical examinations (IMEs).

The affidavit submitted by defendant's claims representative was insufficient to establish that the denial of claim form, which denied the claim based upon the assignor's failure to appear for IMEs, had been timely mailed in accordance with defendant'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]). As a result, the defense that the assignor failed to appear for scheduled IMEs is precluded. As defendant has not challenged the Civil Court's finding, in effect, that plaintiff is otherwise entitled to judgment, plaintiff's motion for summary judgment is granted (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

Accordingly, the order is reversed, plaintiff's motion for summary judgment is granted and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Decision Date: December 16, 2011

20111216

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