March 22, 2019

Vital Chiropractic, P.C. v Nationwide Ins. Co. (2019 NY Slip Op 50425(U))

Headnote

The court considered the fact that the provider was seeking to recover assigned first-party no-fault benefits in the amount of $342.01. The main issue decided was whether the defendant had established the proper mailing of the independent medical examination (IME) scheduling letters and whether the plaintiff's assignor had failed to appear for the IMEs. The holding of the court was that the proof submitted by the defendant was sufficient to establish the proper mailing of the IME scheduling letters and that the plaintiff's assignor had failed to appear for the IMEs. The court also found that there was an issue of fact as to whether the defendant had received the claim seeking reimbursement in the amount of $342.01, and as a result, neither party was entitled to summary judgment upon that claim. Therefore, the court modified the order by denying the branch of the defendant's motion seeking summary judgment dismissing the claim in the amount of $342.01.

Reported in New York Official Reports at Vital Chiropractic, P.C. v Nationwide Ins. Co. (2019 NY Slip Op 50425(U))

Vital Chiropractic, P.C. v Nationwide Ins. Co. (2019 NY Slip Op 50425(U)) [*1]

Vital Chiropractic, P.C. v Nationwide Ins. Co.

2019 NY Slip Op 50425(U) [63 Misc 3d 132(A)]

Decided on March 22, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, BERNICE D. SIEGAL, JJ
2017-625 K C

Vital Chiropractic, P.C., as Assignee of Lavonne Baucom Lamar, Appellant,
against
Nationwide Insurance Company, Respondent.

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and Jamin Koo of counsel), for appellant. Gialleonardo, McDonald, Safranek & Turchetti (Kevon Lewis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 14, 2017. 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 modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the amount of $342.01 is denied; as so modified, the order is affirmed, without 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 and denied plaintiff’s cross motion for summary judgment.Contrary to plaintiff’s contention, the proof submitted by defendant was sufficient to establish the proper mailing of the independent medical examination (IME) scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and 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 [2006]). Defendant further demonstrated that it had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its NF-10 forms denying the claims at issue, except for the claim seeking reimbursement in the amount of $342.01. As to that claim, we find on this record that there is an issue of fact as to whether defendant ever received it. Consequently, neither party is entitled to summary judgment upon that claim.

Plaintiff’s remaining contentions lack merit.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the amount of $342.01 is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 22, 2019