SMB Med., P.C. v State Farm Mut. Ins. Co.

[*1] SMB Med., P.C. v State Farm Mut. Ins. Co. 2014 NY Slip Op 51853(U) Decided on December 30, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570655/14

SMB Medical, P.C., a/a/o Alberto Martinez, Plaintiff-Respondent, -

against

State Farm Mutual Insurance Company, Defendant-Appellant.

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 3, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered July 3, 2013, insofar as appealed from, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint is granted in its entirety. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider's claim for first-party no-fault benefits in the amount of $662.89, by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor and his counsel, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to plaintiff's central argument, defendant submitted competent evidence of the assignor's nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant's third-party IME scheduler attesting to the affiants' personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

In opposition, plaintiff did not specifically 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 Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 30, 2014