Arco Med. NY, P.C. v AIG Indem. Ins. Co.

[*1] Arco Med. NY, P.C. v AIG Indem. Ins. Co. 2014 NY Slip Op 51257(U) Decided on August 8, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2011-2332 K C

Arco Medical NY, P.C., MEGACURE ACUPUNCTURE, P.C. and CHIROPRACTIC BACK CARE, P.C. as Assignees of SABRINA MILLET, Respondents,

against

AIG Indemnity Insurance Company c/o AIG PERSONAL LINES CLAIMS, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered July 19, 2011. The order, insofar as appealed from, denied the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied based upon plaintiffs' assignor's failure to appear for scheduled independent medical examinations, and granted the branch of plaintiffs' cross motion seeking summary judgment upon that portion of the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied based upon plaintiffs' assignor's failure to appear for scheduled independent medical examinations is granted, and the branch of plaintiffs' cross motion seeking summary judgment upon that portion of the complaint is denied.

In this action by providers to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiffs' assignor had failed to appear for duly scheduled independent medical examination (IMEs). Plaintiffs cross-moved for summary judgment upon that portion of the complaint. The Civil Court denied the stated branch of defendant's motion and granted the stated branch of plaintiffs' cross motion.

In support of the stated branch of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office's standard mailing practices and procedures (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 affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiffs' 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]). Finally, the affidavits submitted by defendant sufficiently [*2]demonstrated that defendant had timely denied the claims at issue (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied based upon plaintiffs' assignor's failure to appear for scheduled IMEs is granted, and the branch of plaintiffs' cross motion seeking summary judgment upon that portion of the complaint is denied.

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

Decision Date: August 08, 2014