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Neomy Medical, P.C. As Assignee of Lionel Merilien 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 24, 2012

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 (Reginald A. Boddie, J.), entered May 18, 2010.

Decided on August 24, 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This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON and RIOS, 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 of the Civil Court 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, defendant submitted an affidavit by 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 Crossland had timely mailed (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]) the IME scheduling letters. Defendant also submitted an affidavit by its examining chiropractor/acupuncturist, who stated that plaintiff's assignor had failed to appear for the scheduled IMEs. In addition, an affidavit executed by defendant's litigation examiner demonstrated that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) the claims at issue based upon the failure of plaintiff's assignor to appear for the 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]). In opposition to the cross motion, plaintiff only submitted an affirmation of counsel, which failed to raise a triable issue of fact. Consequently, defendant's cross motion for summary judgment dismissing the complaint should have been granted (see Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co., 34 Misc 3d 126[A], 2011 NY Slip Op 52279[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). 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.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: August 24, 2012

20120824

© 1992-2012 VersusLaw Inc.



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