Laga v Amica Mut. Ins. Co.

[*1] Laga v Amica Mut. Ins. Co. 2017 NY Slip Op 51136(U) Decided on September 8, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-860 Q C

Adelaida M. Laga, PT, as Assignee of Raymond, Peterly, Appellant,

against

Amica Mutual Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Lawrence N. Rogak, LLC, (Lawrence Rogak, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 28, 2014. The order granted the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for independent medical examinations.

ORDERED that the order is reversed, without costs, the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for independent medical examinations is denied, and the matter is remitted to the Civil Court for a determination on the merits of the remaining branch of defendant's motion.

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

Plaintiff correctly argues on appeal that defendant failed to establish that it had mailed letters scheduling plaintiff's assignor's IME (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground relied upon by the Civil Court should [*2]not have been granted. However, defendant's motion was also based on the additional ground that it had paid plaintiff for the services at issue in accordance with the workers' compensation fee schedule, which branch of defendant's motion the Civil Court did not decide. Therefore, the matter is remitted for a determination of that branch of defendant's motion.

Accordingly, the order is reversed, the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for independent medical examinations is denied and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant's motion.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017