Central Radiology Servs., P.C. v MVAIC

[*1] Central Radiology Servs., P.C. v MVAIC 2010 NY Slip Op 50887(U) [27 Misc 3d 137(A)] Decided on May 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-810 Q C.

Central Radiology Services, P.C. as assignee of JEFFERSON BONILLA, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 1, 2009, deemed from a judgment of the same court entered April 9, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 1, 2009 order granting defendant's motion for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed without costs, the order entered April 1, 2009 is vacated, defendant's motion for summary judgment is denied, plaintiff's cross motion for summary judgment is granted and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). Plaintiff opposed defendant's motion and cross-moved for summary judgment. During oral argument, the Civil Court granted defendant leave to submit a supplemental affidavit with respect to the mailing of defendant's denial of claim form. By order entered April 1, 2009, the court granted defendant's motion for summary judgment and denied plaintiff's cross motion. This appeal by plaintiff ensued. A [*2]judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Defendant did not send IME scheduling letters to plaintiff's assignor. Rather, defendant utilized a third party, Medical Consultants Network (MCN), to schedule IMEs on behalf of defendant. The letters upon which defendant relies were sent by MCN and addressed to defendant, not plaintiff's assignor, and stated that the purpose of the letters was to "confirm" that defendant had requested examinations of plaintiff's assignor on specified dates. MCN's customer service representative averred that MCN had sent a "carbon copy" of this letter to plaintiff's assignor. Contrary to defendant's contention, such letters were not proper requests for verification which tolled defendant's time to pay or deny plaintiff's claim (Insurance Department Regulation [11 NYCRR] § 65-3.8). Consequently, based upon the record before us, defendant is precluded from interposing its defense predicated upon the failure of plaintiff's assignor to appear for properly scheduled IMEs. Accordingly, and as defendant has raised no issue in the Civil Court or on appeal with respect to plaintiff's prima facie case, the judgment is reversed, the order entered April 1, 2009 is vacated, defendant's motion for summary judgment is denied, plaintiff's cross motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

In view of the foregoing, we reach no other issue.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 2010