November 1, 2016

Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51613(U))

Headnote

The court considered the motion for summary judgment by the plaintiff to recover assigned first-party no-fault benefits and the cross-motion by the defendant for summary judgment dismissing the complaint. The main issue decided was whether the defendant was entitled to summary judgment based on the assignor's failure to appear for independent medical examinations (IMEs). The court held that the defendant failed to demonstrate that the IMEs had been properly scheduled and, therefore, was not entitled to summary judgment dismissing the complaint. However, the plaintiff also failed to demonstrate its entitlement to summary judgment as it did not establish that the claim at issue had not been timely denied, or that the defendant had issued a timely denial of claim that was conclusory, vague, or without merit as a matter of law. Therefore, the court modified the order to deny the defendant's cross-motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51613(U))

Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51613(U)) [*1]

Renelique v National Liab. & Fire Ins. Co.

2016 NY Slip Op 51613(U) [53 Misc 3d 147(A)]

Decided on November 1, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-21 Q C

Pierre Jean Jacques Renelique, as Assignee of DEVON PIERRE, Appellant,
against
National Liability & Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered December 10, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim at issue based upon the assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Plaintiff correctly argues on appeal that the papers submitted in support of defendant’s cross motion failed to establish that the letters scheduling the IMEs of plaintiff’s assignor had been mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that it is entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the papers submitted in support of its motion failed to establish either that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 01, 2016