May 25, 2018

Pierre J. Renelique, M.D., P.C. v Park Ins. Co. (2018 NY Slip Op 50780(U))

Headnote

The court considered the fact that defendant failed to establish the timely and proper mailing of the independent medical examination (IME) scheduling letters to the plaintiff's assignor. Defendant's moving papers stated that the IME scheduling letters were sent to the assignor at an address different from the one indicated by the plaintiff's NF-3 form, and there was nothing in the record to suggest that the plaintiff's assignor was represented by the attorney to whom copies of the IME scheduling letters were sent. The main issue decided was whether the defendant had properly scheduled the IMEs, and the court held that the defendant's moving papers failed to demonstrate that the IMEs had been properly scheduled, and therefore the defendant was not entitled to summary judgment dismissing the complaint. The order denying defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at Pierre J. Renelique, M.D., P.C. v Park Ins. Co. (2018 NY Slip Op 50780(U))

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

Pierre J. Renelique, M.D., P.C., as Assignee of Guzman, Ramon, Respondent,
against
Park Ins. Co., Appellant.

Gullo & Associates, LLP (Natalie Socorro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 17, 2015. The order denied 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to defendant’s contention, the Civil Court properly determined that defendant had failed to establish the timely and proper mailing of the independent medical examination (IME) scheduling letters. Defendant’s moving papers stated that the IME scheduling letters were sent to plaintiff’s assignor at “2497 Grant Avenue, Basement, Bronx, NY 10468,” but the NF-3 form submitted by plaintiff indicated that the assignor’s address was “2307 Morris Ave, #2C, Bronx NY 10453.” A presumption of receipt arises only where there is proof of a proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2013]). To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant’s moving papers failed to demonstrate that the IMEs had been properly scheduled (see Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing, 43 Misc 3d 127[A], 2014 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Infinity Health Prods., Ltd., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U]; cf. Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]) and, thus, that it is entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

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