Canon Chiropractic, P.C. v Travelers Prop. Cas. Co. of Am.

[*1] Canon Chiropractic, P.C. v Travelers Prop. Cas. Co. of Am. 2017 NY Slip Op 51826(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-1186 K C

Canon Chiropractic, P.C., as Assignee of Katorah Davis, Appellant,

against

Travelers Property Casualty Company of America, Respondent.

Gary Tsirelman, P.C. (Daniel Grace, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Alla Peker, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 12, 2014. The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted 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).

Plaintiff correctly argues that defendant failed to establish, as a matter of law, that it sent the IME scheduling letters to the assignor's correct address (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, we need not reach plaintiff's remaining contentions.

Accordingly, the order, insofar as appealed from, is reversed, and defendant's motion for summary judgment dismissing the complaint is denied.

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

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