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Brooklyn Heights Physical Therapy, P.C. As Assignee of Doreen L. Polanco 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


December 21, 2012

BROOKLYN HEIGHTS PHYSICAL THERAPY, P.C. AS ASSIGNEE OF DOREEN L. POLANCO,
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 (Terrence C. O'Connor, J.), entered October 25, 2010, deemed from a judgment of the same court entered December 6, 2010 (see CPLR 5501 [c]).

Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on

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

The judgment, entered pursuant to the October 25, 2010 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $2,342.94.

ORDERED that the judgment is reversed, with $30 costs, the order entered October 25, 2010 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered October 25, 2010 which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment, finding that defendant's denials were nullities because they had not been issued in duplicate (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]). A judgment awarding plaintiff the principal sum of $2,342.94 was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit by an employee of National Claim Evaluations, Inc. (NCEI), an entity which had scheduled independent medical examinations (IMEs) of plaintiff's assignor on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with NCEI'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 an affidavit by the chiropractor/acupuncturist who was to perform the IMEs which established that plaintiff's assignor had failed to appear for the scheduled IMEs. An affidavit executed by defendant's litigation examiner demonstrated that 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 to plaintiff, plaintiff's assignor, and plaintiff's assignor's attorney (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (1) requires that, upon deciding to deny a claim, "the insurer shall notify the applicant or the authorized representative on the prescribed denial of claim form, in duplicate." Plaintiff has offered no argument as to why defendant's mailing of each denial of claim form to plaintiff, plaintiff's assignor and plaintiff's assignor's attorney, respectively, does not satisfy this requirement. Accordingly, 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]). Since plaintiff failed to raise a triable issue of fact, defendant's motion for summary judgment dismissing the complaint should have been granted.

Accordingly, the judgment is reversed, the order entered October 25, 2010 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: December 21, 2012

20121221

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