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Acupuncture Approach PC v. MVAIC

Supreme Court of New York, First Department

October 15, 2013

Acupuncture Approach PC a/a/o Hector Diaz, Plaintiff-Respondent,
v.
MVAIC, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered August 13, 2012, which denied its motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment in the principal sum of $570.

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ.

PER CURIAM.

Order (Peter H. Moulton, J.), entered August 13, 2012, affirmed, with $10 costs.

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law on its claim for assigned first-party no-fault benefits, defendant MVAIC failed to raise a material issue requiring a trial, much less demonstrate a legal basis to dismiss the claim outright. While defendant contends that the claim for payment was premature because of plaintiff's assignor's failure to appear for independent medical examinations (IMEs), defendant failed to establish, prima facie, that the notices scheduling the IMEs were properly addressed and mailed. In this regard, defendant's moving submission heavily relied on an affidavit submitted by an employee of the entity retained by defendant to schedule the IMEs in this matter. The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her office's mailing practices and procedures. Thus, defendant "failed to establish that the practice and procedure was designed to ensure that the [notices] were addressed to the proper party and properly mailed" (Westchester Med. Ctr. v Countrywide Ins. Co., 45 A.D.3d 676 [2007]; cf. Badio v Liberty Mut. Fire Ins. Co., 12 A.D.3d 229 [2004]).


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