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Five Boro Psychological Services, P.C. As Assignee of Damien Gardner v. Praetorian Ins. Co

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


July 12, 2012

FIVE BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF DAMIEN GARDNER,
RESPONDENT, --
v.
PRAETORIAN INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 24, 2010.

Five Boro Psychological Servs., P.C. v Praetorian Ins. Co.

Decided on July 12, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., RIOS and ALIOTTA, JJ

The order, insofar as appealed from as limited by the brief, 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 of the Civil Court as denied defendant's cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant asserted that it had timely denied plaintiff's claim based on the failure of plaintiff's assignor to appear for two scheduled independent medical examinations (IMEs) -- an initial IME scheduled for March 9, 2007 and a follow-up IME scheduled for March 23, 2007. In her affidavit, the president of Media Referral, Inc., the independent medical review service retained by defendant to schedule IMEs, stated that within 48 hours prior to the IME scheduled for March 9, 2007, plaintiff's assignor called to cancel that IME. Accordingly, Media Referral, Inc. mailed a letter on March 8, 2007, rescheduling the March 9, 2007 IME for March 23, 2007.

Upon the record presented, we find that defendant failed to establish that plaintiff's assignor had failed to appear for two scheduled IMEs, as defendant did not establish, as a matter of law, that its March 8, 2007 letter did not represent a mutual agreement to reschedule the first IME (see e.g. Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & 11th Jud Dists 2006]). Consequently, defendant's motion for summary judgment dismissing the complaint was properly denied (CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Pesce, P.J., Rios and Aliotta, JJ., concur.

Decision Date: July 12, 2012

20120712

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