Gutierrez v Elrac, Inc.

[*1] Gutierrez v Elrac, Inc. 2015 NY Slip Op 51215(U) Decided on August 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-388 Q C

Jaime G. Gutierrez as Assignee of SHANITA MILLER, Appellant, August 5, 2015

against

Elrac, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 4, 2013. The order denied plaintiff's motion for summary judgment and granted 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that it 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 plaintiff's motion and granted defendant's cross motion

Contrary to plaintiff's arguments on appeal, the affidavits submitted by defendant in support of its cross motion were sufficient to demonstrate that the denial and IME scheduling letters had been timely 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]). Plaintiff's remaining contentions on appeal lack merit.

Accordingly, the order is affirmed.

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

Decision Date: August 05, 2015