Radiology Today, P.C. v GEICO Ins. Co.

[*1] Radiology Today, P.C. v GEICO Ins. Co. 2009 NY Slip Op 52208(U) [25 Misc 3d 133(A)] Decided on October 23, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1592 RI C.

Radiology Today, P.C. as assignee of CHARLES RAWLINS, Respondent,

against

GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered July 3, 2008. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff's assignor's failure to appear for independent medical examinations (IMEs). The Civil Court denied defendant's unopposed motion on the ground that defendant had failed "to show [that] the IME notices were mailed to [the] claimant."

In support of its motion, defendant submitted the affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently set forth the standard office practice and procedure for the generation and mailing of IME notices designed to ensure that said notices were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff's assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant's unopposed motion for summary judgment dismissing the complaint should have been granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 23, 2009