AP Orthopedic & Rehabilitation, P.C. v Mercury Cas. Co.

[*1] AP Orthopedic & Rehabilitation, P.C. v Mercury Cas. Co. 2014 NY Slip Op 51794(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-564 Q C

AP Orthopedic & Rehabilitation, P.C. as Assignee of MICHAEL SMITH, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 8, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. The Civil Court denied defendant's motion and plaintiff's cross motion and held that the only remaining issue for trial was the propriety of defendant's IME scheduling letters. Defendant argues on appeal that its motion for summary judgment dismissing the complaint should have been granted.

Contrary to the determination of the Civil Court, we find that defendant's IME scheduling letters comply with the No-Fault Regulations (see 11 NYCRR 65-3.5 [e]). As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014