Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co.

[*1] Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co. 2015 NY Slip Op 51721(U) Decided on November 20, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1348 K C

Sharp View Diagnostic Imaging, P.C. as Assignee of AHMED RIZWAN, Appellant,

against

Maya Assurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 13, 2013. The order granted 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 denied.

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.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff's assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Delta Diagnostic Radiology, P.C. v Maya Assur. Co., 47 Misc 3d 151[A], 2015 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant's motion for summary judgment is denied.

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

Decision Date: November 20, 2015