Straight Up Chiropractic, PC v MVAIC

[*1] Straight Up Chiropractic, PC v MVAIC 2020 NY Slip Op 51243(U) Decided on October 23, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Higgitt, McShan, JJ.
570143/20

Straight Up Chiropractic, PC, a/a/o Leeann Delgado, Plaintiff-Respondent,

against

MVAIC, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Dakota D. Ramseur, J.), entered September 6, 2019, which denied its motion for summary judgment.

Per Curiam.

Order (Dakota D. Ramseur, J.), entered September 6, 2019, affirmed, with $10 costs.

Civil Court correctly denied defendant's summary judgment motion as untimely, since it was made after the 120-day deadline set forth in the September 5, 2018 so-ordered stipulation/preliminary conference order, and was unaccompanied by a showing of good cause for the lateness (see CPLR 3212[a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Hernandez v 2075-2081 Wallace Ave. Owners Corp., 176 AD3d 467 [2019]). Even if the motion was made timely, defendant failed to establish prima facie entitlement to summary judgment dismissing the underlying first-party no-fault claim based upon the assignor's nonappearance at scheduled independent medical examinations [IME], because the address to which the IME scheduling letters were sent used an incorrect zip code. Therefore, defendant's proof was insufficient to give rise to a presumption of receipt (see Global Liberty Ins. Co. v New Century Acupuncture, P.C., 161 AD3d 498 [2018]; Delta Diagnostic Radiology, P.C. v Citiwide Auto Leasing, 46 Misc 3d 128[A], 2014 NY Slip Op 51801[U] [App Term, 2d Dept, 2d, 11th and 13th Jud Dists [2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur
Decision Date: October 23, 2020