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Infinity Health Products, Ltd. As Assignee of Alexander Fitzmichael, Jr v. New York Central Mutual Fire Insurance Company

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


August 6, 2012

INFINITY HEALTH PRODUCTS, LTD. AS ASSIGNEE OF ALEXANDER FITZMICHAEL, JR.,
RESPONDENT, --
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), dated September 23, 2010.

Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co.

Decided on August 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: RIOS, J.P., PESCE and ALIOTTA, JJ

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

ORDERED that the order, insofar as appealed from, is reversed, without costs, 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie entitlement to summary judgment, that defendant had "established mailing of proper and timely denials," and that "[t]he sole issue remaining for trial is whether defendant established its [independent medical examination] No Show defense." Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion.

In support of its cross motion for summary judgment, defendant submitted an affidavit by an employee of Crossland Medical Services, P.C. (Crossland), the entity which had scheduled the independent medical examinations (IMEs) 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]). Defendant also submitted affidavits by the doctors who were to perform the IMEs which established that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's cross motion for summary judgment dismissing the complaint is granted.

Accordingly, the order, insofar as appealed from, is reversed, and defendant's cross motion for summary judgment dismissing the complaint is granted.

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

Date: August 06, 2012

20120806

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