Ocean Diagnostic Imaging P.C. v General Assur. Co.

[*1] Ocean Diagnostic Imaging P.C. v General Assur. Co. 2005 NYSlipOp 50435(U) Decided on March 31, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-1005 S C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o Yves Louis, Arnold Ripoll, Damion Wright, Margaret Edme, Fabian A. Cox, Appellant,

against

GENERAL ASSURANCE COMPANY, Respondent.

Appeal by plaintiff, as limited by its brief, from so much of an order of the District Court, Suffolk County (J. Flanagan, J.), dated June 22, 2004, as denied its motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff's motion for summary judgment granted in the amount of $7,132.53, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

Plaintiff health care provider commenced this action to recover the sum of $7,132.53 in first-party no-fault benefits for medical services rendered to five assignors for injuries allegedly sustained in five different motor vehicle accidents. In each case, defendant had timely denied plaintiff's claims based upon the assignor's failure to attend scheduled independent medical examinations (IMEs). Thereafter, plaintiff moved for summary judgment and defendant cross-moved. Both the motion and cross motion were denied.

Upon a review of the record, we find that plaintiff established its prima facie entitlement to summary judgment by proof that it submitted to defendant claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op [*2]51700[U] [App Term, 9th & 10th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

With respect to each of the claims submitted, defendant's denial was based on plaintiff's assignor's failure to attend scheduled IMEs. Although defendant had the right to request attendance at IMEs scheduled prior to the insurer's receipt of plaintiff's proofs of claim (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]), it failed to establish by competent evidence that it did so. Neither defense counsel's affirmation nor the affidavit of defendant's "team leader" was sufficient to demonstrate that they had personal knowledge of the actual mailing of the IME notices (see Rue v Stokes, 191 AD2d 245 [1993]), nor did defendant create a presumption of mailing by describing the standard office practice or procedure used by defendant to ensure that such letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). While the affidavits of defendant's IME vendors might have been sufficient to satisfy the latter requirement, they were not, in any event, submitted with defendant's original motion papers but rather with defendant's appellate brief. Documents submitted with the brief are dehors the record and generally may not be considered by this court on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, plaintiff's motion for summary judgment is granted and the matter is remanded to the court below for a calculation of the statutory interest due on $7,132.53, and an assessment of attorney's fees, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: March 31, 2005