K.O. Med., P.C. v Mercury Cas. Co.

[*1] K.O. Med., P.C. v Mercury Cas. Co. 2017 NY Slip Op 51158(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2014-2038 K C

K.O. Medical, P.C., as Assignee of Clerge Sebastian, Respondent,

against

Mercury Casualty Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Melissa Betancourt (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 10, 2014. The order, insofar as appealed from as limited by the brief, denied the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered between April 12, 2010 and May 14, 2010, on June 8, 2010, on June 16, 2010, and between June 21, 2010 and October 22, 2010.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court denied the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered between April 12, 2010 and May 14, 2010, on June 8, 2010, on June 16, 2010, and between June 21, 2010 and October 22, 2010. Defendant sought summary judgment on the grounds that some of the claims at issue had been paid in accordance with the worker's compensation fee schedule and that some of them had been denied based upon plaintiff's assignor's failure to appear for two scheduled independent medical examinations (IMEs).

The Civil Court properly denied the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims that had been denied based upon plaintiff's assignor's failure to appear for the IMEs, as the proof submitted by defendant was not sufficient to give rise to a presumption that the IME scheduling letters at issue had been properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Furthermore, defendant did not demonstrate that Ground Rule 11 of the worker's compensation fee schedule was appropriately applied to the claims underlying the remaining portions of the complaint at issue (see Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

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

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

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017