Delta Diagnostic Radiology, P.C. v Citiwide Auto Leasing

[*1] Delta Diagnostic Radiology, P.C. v Citiwide Auto Leasing 2014 NY Slip Op 51801(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2012-909 K C

Delta Diagnostic Radiology, P.C. as Assignee of KAMILLE SELASSIE, Appellant,

against

Citiwide Auto Leasing, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered February 3, 2012. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, plaintiff's motion for summary judgment is granted, and the matter is remitted to the Civil Court for a 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claim at issue based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied both motions. Plaintiff appeals from so much of the Civil Court's order as denied its motion.

The record establishes that, after plaintiff had submitted its claim, defendant sent plaintiff's assignor letters scheduling the IMEs in question. However, because the address to which the IME scheduling letters were sent used an incorrect zip code, defendant's proof was insufficient to give rise to a presumption of receipt (Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Since defendant failed to demonstrate that the IMEs had been properly scheduled (id.), defendant's denial of claim form lacked merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff's motion for summary judgment should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, plaintiff's motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 17, 2014