Jamhil Med., P.C. v Clarendon Natl. Ins. Co.

[*1] Jamhil Med., P.C. v Clarendon Natl. Ins. Co. 2012 NY Slip Op 51644(U) Decided on August 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2001 K C.

Jamhil Medical, P.C. as Assignee of GEORGE BRADY, Respondent,

against

Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered October 23, 2009, deemed from a judgment of the same court entered January 4, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 23, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $4,229.23.

ORDERED that the judgment is reversed, without costs, the order entered October 23, 2009 is vacated, plaintiff's motion for summary judgment is denied 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, defendant appeals from an order of the Civil Court entered October 23, 2009 which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]). [*2]

In support of its cross motion, defendant submitted an affidavit by the president of Media Referral, Inc., an independent medical review service retained by defendant to schedule independent medical examinations (IMEs) of plaintiff's assignor. The affidavit established that Media Referral, Inc. had timely mailed the IME scheduling letters (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 from the chiropractor/ acupuncturist who was to perform the IMEs which established 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]). In addition, an affidavit executed by defendant's claims examiner demonstrated that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) plaintiff's claim on the ground that plaintiff's assignor had failed to appear at the scheduled IMEs. As a result, defendant was entitled to summary judgment dismissing the complaint (see All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, the order entered October 23, 2009 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 23, 2012