October 13, 2016

Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51523(U))

Headnote

The court considered the fact that the plaintiff was seeking to recover first-party no-fault benefits as an assignee, and that the defendant had filed a motion for summary judgment dismissing the complaint on the basis that the plaintiff's assignor had failed to appear for independent medical examinations (IMEs). The main issue decided was whether the proof submitted by the defendant was sufficient to give rise to a presumption that the IME scheduling letters and the denial of claim form had been properly mailed, and if the plaintiff's assignor had failed to appear for the IMEs. The court held that the proof submitted by the defendant was indeed sufficient to establish the presumption, and that the argument raised by the plaintiff regarding the address used on the IME scheduling letters was not considered as it was being raised for the first time on appeal. The court ultimately affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51523(U))

Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51523(U)) [*1]

Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co.

2016 NY Slip Op 51523(U) [53 Misc 3d 141(A)]

Decided on October 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-16 Q C

Prime Diagnostic Medical, P.C., as Assignee of NAEEM GEORGE, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 5, 2013. 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 arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the IME scheduling letters and the denial of claim form at issue had been properly mailed (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]). Plaintiff’s argument, that the address used on the IME scheduling letters improperly included an apartment number that does not appear on plaintiff’s claim forms, will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In any event, the affidavit of defendant’s litigation examiner stated that defendant used the address set forth on the assignor’s application for no-fault benefits.

Accordingly, the order is affirmed.

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

Decision Date: October 13, 2016