November 30, 2018

Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2018 NY Slip Op 51772(U))

Headnote

The court considered the fact that the plaintiff, a medical supply company, was seeking to recover first-party no-fault benefits as the assignee of an individual. The main issue decided was whether the defendant, an auto leasing insurance company, was entitled to summary judgment dismissing the complaint based on the assignor's failure to appear for independent medical examinations (IMEs). The court found that the proof submitted by the defendant was sufficient to establish the proper mailing of the IME scheduling letters and that the assignor had failed to appear for the IMEs. As a result, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint. The holding of the case was that the defendant was entitled to summary judgment based on the assignor's failure to appear for the IMEs, and the court affirmed the order granting the defendant's motion for summary judgment.

Reported in New York Official Reports at Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2018 NY Slip Op 51772(U))

Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2018 NY Slip Op 51772(U)) [*1]

Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co.

2018 NY Slip Op 51772(U)

Decided on November 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 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
2016-1023 K C

Village Medical Supply, Inc., as Assignee of Teikesha Jackson, Appellant,
against
Citiwide Auto Leasing Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Miller, Leiby & Associates, P.C. (Eve Pachter of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered December 9, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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).

Contrary to plaintiff’s contention, the proof submitted by defendant was sufficient to establish the proper mailing of the 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, 722 [2006]). Plaintiff’s remaining contentions lack merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018