Advanced Psychological Care, P.C. v MVAIC

[*1] Advanced Psychological Care, P.C. v MVAIC 2014 NY Slip Op 51809(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2012-1301 RI C

Advanced Psychological Care, P.C. as Assignee of JEANNIS VICTORIN, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered March 29, 2012. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. On appeal, defendant argues that it is entitled to summary judgment dismissing the complaint because it demonstrated that plaintiff's assignor had failed to appear for properly scheduled independent medical examinations (IMEs).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

While defendant submitted an affidavit executed by an employee of Medical Consultants Network, the company which had been retained by defendant to schedule the IMEs, the affidavit did not sufficiently set forth a standard office practice or procedure to establish that the scheduling letters had been properly addressed and mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled, and, thus, its cross motion was properly denied.

Accordingly, the order is affirmed.

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

Decision Date: December 17, 2014