Eagle Surgical Supply, Inc. v Citywide Auto Leasing, Inc.

[*1] Eagle Surgical Supply, Inc. v Citywide Auto Leasing, Inc. 2018 NY Slip Op 50776(U) Decided on May 25, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-160 K C

Eagle Surgical Supply, Inc., as Assignee of Quincy Sinclair, Appellant,

against

Citywide Auto Leasing, Inc., Respondent.

Korsunskiy Legal Group, P.C. (Henry R. Guindi of counsel), for appellant. Miller, Leiby & Associates, P.C. (Melissa M. Wolin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 20, 2015. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

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 on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's sole contention, the affidavit submitted by the acupuncturist who was to perform the IMEs was sufficient to establish that plaintiff's assignor had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018