Bay Ls Med. Supplies, Inc. v Chubb Indem. Ins. Co.

[*1] Bay Ls Med. Supplies, Inc. v Chubb Indem. Ins. Co. 2015 NY Slip Op 50790(U) Decided on May 18, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-703 Q C

Bay LS Medical Supplies, Inc. as Assignee of JOHNFI CANELA, Respondent,

against

Chubb Indemnity Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 28, 2013. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, made CPLR 3212 (g) findings in plaintiff's favor, and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

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 plaintiff's assignor had failed to appear for properly scheduled independent medical examinations (IMEs). The Civil Court, upon denying the motion and cross motion, made CPLR 3212 (g) findings in both parties' favor and found that there was a triable issue of fact "with respect to whether the assignor was properly notified of the IMEs because the scheduling letters were addressed to one John Canela, but the assignor's name as it appears on the NF-2 is Jhonffi Canela."

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court's CPLR 3212 (g) findings in plaintiff's favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

As it cannot be said, as a matter of law, that the IME scheduling letters addressed to John Canela provided sufficient notice that plaintiff's assignor, Jhonffi Canela (misspelled "Johnfi" by plaintiff in the summons and complaint), was to appear for the IMEs, the Civil Court properly denied defendant's cross motion for summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: May 18, 2015