Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51688(U))

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Office of John Gallagher, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Andrew Borrok, J.), entered July 5, 2017. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

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

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 on the ground, among others, that it had timely and properly denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). In an order entered July 5, 2017, the Civil Court denied defendant’s cross motion, but, in effect pursuant to CPLR 3212 (a), held that the only remaining issue for trial was whether the assignor’s address to which the IME scheduling letters had been mailed was proper.

The record demonstrates conclusively that while the address to which defendant mailed the letters did not include an apartment number, the address matched the one provided by plaintiff’s assignor on the assignor’s sworn application for no-fault benefits (NF-2) and on the assignor’s sworn notice of intention to make claim form which was submitted to defendant. [*2]Consequently, defendant established that the address to which the IME scheduling letters were mailed was proper (see Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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