Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co.

[*1] Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co. 2016 NY Slip Op 51598(U) Decided on October 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2015-350 S C

Central Park Physical Medicine & Rehab., P.C., as Assignee of LUIS CARCHI, Respondent,

against

National Liability & Fire Insurance Company, Appellant.

Appeal from an order of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), dated December 23, 2014. The order, insofar as appealed from as limited by the brief, denied the branches of defendant's motion seeking summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, for summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). In opposition, plaintiff argued with respect to those causes of action that defendant had failed to establish that it had timely mailed its IME scheduling letters and denial of claim forms. By order dated December 23, 2014, the District Court, among other things, denied those branches of defendant's motion.

Upon a review of the record, we find that defendant failed to establish as a matter of law that the IME scheduling letters at issue had been timely and properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, as defendant did not demonstrate that its 30-day period to pay or deny the claims had been tolled, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action.

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

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Decision Date: October 31, 2016