Ortho Passive Motion, Inc. v New York Cent. Mut. Fire Ins. Co.

[*1] Ortho Passive Motion, Inc. v New York Cent. Mut. Fire Ins. Co. 2016 NY Slip Op 51364(U) Decided on September 19, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2723 Q C

Ortho Passive Motion, Inc., as Assignee of PIERRE SOUFFRANT, Respondent,

against

New York Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered October 23, 2013. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant established that, before receiving the claims at issue, it had mailed letters scheduling an initial and follow-up IME (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant further demonstrated that, upon receipt of the claims, it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent's Hosp. of Richmond, 50 AD3d 1123). Finally, defendant established that, upon receiving the requested verification, it had timely denied the claims at issue based upon the assignor's failure to appear for IMEs (see 11 NYCRR 65-3.8 [l]; St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

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

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

Decision Date: September 19, 2016