Daily Med. Equip. Distrib. Ctr., Inc. v ELRAC, Inc.

[*1] Daily Med. Equip. Distrib. Ctr., Inc. v ELRAC, Inc. 2017 NY Slip Op 51805(U) Decided on December 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 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
2015-486 K C

Daily Medical Equipment Distribution Center, Inc., as Assignee of Kepple Subrina, Appellant,

against

ELRAC, Inc., Respondent.

Law Offices of Melissa Betancourt (Melissa Betancourt, Esq), for appellant. Carman, Callahan & Ingham, LLP (Paul A. Barrett, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 14, 2015. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

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 defendant's motion for summary judgment dismissing the complaint upon the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff's argument on appeal, the affidavit submitted by defendant in support of its motion was sufficient to demonstrate that the denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, contrary to plaintiff's contention, the affirmation defendant submitted from the doctor who was to perform the IMEs of plaintiff's assignor was sufficient to establish that plaintiff's assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017