MDJ Med., P.C. v New York Cent. Mut. Ins. Co.

[*1] MDJ Med., P.C. v New York Cent. Mut. Ins. Co. 2013 NY Slip Op 51797(U) Decided on October 28, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570509/13.

MDJ Medical, P.C., a/a/o Small Alison, Plaintiff-Respondent,

against

New York Central Mutual Insurance Company, Defendant-Appellant.

OCTOBER 28, 2013 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT October 2013 Term Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.MDJ Medical, P.C., NY County Clerk's No. a/a/o Small Alison,570509/13 Plaintiff-Respondent, against Calendar No. 13-283 New York Central Mutual Insurance Company, Defendant-Appellant. Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered October 5, 2012, as denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Fernando Tapia, J.), entered October 5, 2012, insofar as appealed from, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly. The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not deny the assignor's nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560). We note that "when [plaintiff's] assignor[] failed to appear for the requested IMEs, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued" (id.). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: October 28, 2013

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered October 5, 2012, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered October 5, 2012, insofar as appealed from, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not deny the assignor's nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560). We note that "when [plaintiff's] assignor[] failed to appear for the requested IMEs, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued" (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 28, 2013