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Vit Acupuncture, P.C. v. Praetorian Ins. Co.

Supreme Court of New York, Second Department

November 26, 2013

Vit Acupuncture, P.C. as Assignee of SHERITA DESELLE, Respondent,
v.
Praetorian Ins. Co., Appellant.

PRESENT:: PESCE, P.J., ALIOTTA and SOLOMON, JJ

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 15, 2011. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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. Insofar as is relevant to this appeal, the Civil Court denied defendant's cross motion.

In support of its cross motion, defendant submitted an affidavit by a supervisor of Media Referral, Inc., a company retained by defendant to schedule independent medical examinations (IMEs), which sufficiently established that the IME requests had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 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, among other things, an affidavit by the doctor who was to perform the physiatrist/PMR IMEs, as well as an affidavit by the chiropractor who was to perform the chiropractic IMEs, which were sufficient to establish that plaintiff's assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 A.D.3d 720 [2006]). In addition, an affidavit executed by defendant's claims examiner demonstrated that the denial of claim forms, which denied plaintiff's claims based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 A.D.3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc.3d 16). Consequently, defendant established its entitlement to summary judgment dismissing the complaint (Stephen Fogel Psychological, P.C., 35 A.D.3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.


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