Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co.

[*1] Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co. 2013 NY Slip Op 51758(U) Decided on October 15, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-3029 K C.

Barclays Medical, P.C. as Assignee of ATIKA BAPTISTE, Respondent,

against

NY Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered October 18, 2011. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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, the Civil Court denied defendant's motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by a manager of Crossland Medical Review Services, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), and an affidavit from defendant's litigation examiner, which established that the IME requests 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, among other things, an affidavit from the doctor who was to perform the orthopedic IMEs, as well as an affidavit from the chiropractor who was to perform the chiropractic/acupuncture 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 AD3d 720 [2006]). In addition, the affidavit executed by defendant's litigation examiner demonstrated that the denial of claim forms, which denied plaintiff's claims based upon plaintiff's assignor's nonappearance at the IMEs, had been timely mailed to the address indicated by plaintiff (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Plaintiff's remaining contentions also lack merit.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 15, 2013