Masigla v National Liab. & Fire Ins. Co.

[*1] Masigla v National Liab. & Fire Ins. Co. 2017 NY Slip Op 51847(U) Decided on December 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 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
2014-2082 Q C

Maria S. Masigla, P.T., as Assignee of Gilbert, Anthony, Appellant,

against

National Liability & Fire Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Moira Doherty, P.C. (Janice P. Rosen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 12, 2014. The order, insofar as appealed from, granted the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff's assignor had failed to attend independent medical examinations.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff's assignor had failed to attend independent medical examinations is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff's assignor had failed to attend independent medical examinations (IMEs).

Plaintiff correctly argues that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that its letters scheduling plaintiff's assignor for IMEs had been properly mailed (see St. Vincent's Hosp. [*2]of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; TAM Med. Supply Corp. v National Liab. & Fire Ins. Co., 53 Misc 3d 134[A], 2016 NY Slip Op 51423[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant did not demonstrate its entitlement to summary judgment.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff's assignor had failed to attend IMEs is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017