Charles Deng Acupuncture, P.C. v Unitrin Auto & Home Ins. Co.

[*1] Charles Deng Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. 2017 NY Slip Op 51834(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-1503 K C

Charles Deng Acupuncture, P.C., as Assignee of Noel, Junior, Appellant,

against

Unitrin Auto and Home Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Gullo & Associates, LLC (Natalie Socorro, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 13, 2015. The order, insofar as appealed from, denied the branch of plaintiff's motion seeking summary judgment upon the second cause of action and granted the branch of defendant's cross motion seeking summary judgment dismissing that cause of action.

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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals from so much of an order of the Civil Court entered February 13, 2015 as denied the branch of plaintiff's motion seeking summary judgment upon the second cause of action and granted the branch of defendant's cross motion seeking summary judgment dismissing that cause of action.

Contrary to plaintiff's sole argument as to defendant's cross motion, the affidavit submitted by defendant was sufficient to demonstrate that the independent medical examination scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

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

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

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