Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co.

[*1] Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. 2012 NY Slip Op 50931(U) Decided on May 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 15, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1246 K C.

Midwood Total Rehabilitation Medical, P.C. as Assignee of JENNY CARMEN HERNANDEZ, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

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

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 of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.The affidavit by an employee of Independent Physical Exam Referrals, the entity which had scheduled the independent medical examinations (IMEs) involved herein on behalf of defendant, established that the IME scheduling letters 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]). In addition, the affidavits executed by defendant's claims examiner and claims support services supervisor demonstrated that the denial of claim forms, which denied the claims based upon the [*2]failure of plaintiff's assignor to appear for the IMEs, had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affirmations from its examining physician, chiropractor and acupuncturist, all of whom stated that plaintiff's assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as plaintiff submitted only an affirmation in opposition from its counsel, which failed to raise a triable issue of fact, the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 15, 2012