Quality Psychological Servs., P.C. v MVAIC

[*1] Quality Psychological Servs., P.C. v MVAIC 2012 NY Slip Op 50757(U) Decided on April 25, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.

Quality Psychological Services, P.C. as Assignee of ELMO COLLANTES, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 14, 2010. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its motion for summary judgment and granted a cross motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.

In support of its cross motion, defendant established that the letters scheduling the independent medical examinations (IMEs), and the denial of claim forms, which were based upon the failure of plaintiff's assignor to appear at the IMEs, had been timely mailed (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 of the chiropractor/acupuncturist who had been retained to perform the IMEs, which was sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to raise an issue of fact, defendant's cross motion for summary judgment was properly granted (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

In light of the foregoing, plaintiff's remaining contention lacks merit. Accordingly, the order is affirmed.

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

Rios, J., concurs in part and dissents in part in a separate memorandum.

Rios, J., concurs in part and dissents in part and votes to modify the order by providing that defendant's cross motion for summary judgment dismissing the complaint is denied in the following memorandum:

Contrary to the finding of the majority, the affidavit of defendant's third-party scheduler fails to adequately describe the procedures necessary to establish proper mailing of the [*2]independent medical examination appointments. Thus, defendant's cross motion for summary judgment dismissing the complaint should have been denied.
Decision Date: April 25, 2012