Alleviation Med. Servs., P.C. v Maya Assur. Co.

[*1] Alleviation Med. Servs., P.C. v Maya Assur. Co. 2015 NY Slip Op 51238(U) Decided on August 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-545 K C

Alleviation Medical Services, P.C. as Assignee of NKIECHIE FRIDAY, Appellant,

against

Maya Assurance Company, Respondent. ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss 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 granted defendant's motion, and plaintiff appeals.

Plaintiff correctly argues on appeal that defendant's motion papers failed to establish that the letters scheduling the IMEs of plaintiff's assignor 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]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that it is entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

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

Decision Date: August 06, 2015