September 19, 2016

Tam Med. Supply Corp. v Tri State Consumers Ins. Co. (2016 NY Slip Op 51350(U))

Headnote

The relevant facts of this case involved an action by a medical provider to recover assigned first-party no-fault benefits. The court considered the denial of the plaintiff's motion for summary judgment and the granting of the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether the affirmation submitted by the defendant's doctor was sufficient to establish that the plaintiff's assignor had failed to appear for scheduled independent medical examinations. The holding of the court was that the affirmation submitted by the defendant was indeed sufficient, and therefore the order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint was affirmed.

Reported in New York Official Reports at Tam Med. Supply Corp. v Tri State Consumers Ins. Co. (2016 NY Slip Op 51350(U))

Tam Med. Supply Corp. v Tri State Consumers Ins. Co. (2016 NY Slip Op 51350(U)) [*1]

TAM Med. Supply Corp. v Tri State Consumers Ins. Co.

2016 NY Slip Op 51350(U) [53 Misc 3d 128(A)]

Decided on September 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2363 Q C

TAM Medical Supply Corp., as Assignee of YNILCY BASCUMBE, Appellant,
against
Tri State Consumers Ins. Co., Respondent.

Appeals from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 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 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the affirmation defendant submitted from the doctor who was to perform an independent medical examination (IME) of plaintiff’s assignor was sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, we need not reach plaintiff’s contentions with respect to its motion for summary judgment or an alternate defense asserted by defendant.

Accordingly, the order is affirmed.

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

Decision Date: September 19, 2016