Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 22, 2010.
Infinity Health Prods., Ltd. v Redland 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., RIOS and SOLOMON, 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 affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. Defendant alleged in support of its cross motion that plaintiff's assignor had breached a condition precedent to coverage in that she had failed to appear for duly scheduled independent medical examinations (IMEs). The court found that defendant had mailed the IME scheduling letters to the wrong address.
On appeal, defendant's sole argument is that it raised a triable issue of fact and made a prima facie showing of entitlement to summary judgment by submitting sufficient proof that it had properly mailed the IME scheduling letters and that plaintiff's assignor had failed to appear. Regarding the address to which the IME scheduling letters were mailed, defendant alleges that "[t]he IME scheduling notices were mailed to the assignor's attorney and copied to the assignor at the address (including zip code) that the assignor provided." However, a review of the file reveals that plaintiff's assignor's zip code was listed as 10469 on both plaintiff's claim form and the assignment of benefits submitted by plaintiff to the court in support of its motion for summary judgment, while the IME scheduling letters and the postmarked mailing logs submitted by defendant list the zip code as 10468. Only proof of proper mailing gives rise to a presumption of receipt (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ). Furthermore, there is nothing in the record to suggest that plaintiff's assignor was represented by the attorney to whom the IME scheduling letters were also sent. Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled (cf. Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2006]).
Accordingly, the order is affirmed.
Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: May 06, 2013
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