December 17, 2014

XVV, Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51819(U))

Headnote

The relevant facts considered by the court in this case involved a dispute over first-party no-fault benefits between XVV, Inc. and Praetorian Ins. Co. The main issue decided was whether the defendant was entitled to summary judgment dismissing the complaint based on the plaintiff's assignor failing to appear for independent medical examinations (IMEs). The court ultimately held that the defendant was entitled to summary judgment, as they had submitted sufficient evidence that the IME requests had been timely mailed and that the plaintiff's assignor had failed to appear for the IMEs. As a result, the court reversed the lower court's decision and granted the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at XVV, Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51819(U))

XVV, Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51819(U)) [*1]

XVV, Inc. v Praetorian Ins. Co.

2014 NY Slip Op 51819(U) [46 Misc 3d 130(A)]

Decided on December 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1515 K C

XVV, Inc. as Assignee of GINA SUERO, Respondent,
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 24, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion and held that the sole issue for trial was defendant’s defense that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs).

In support of its cross motion seeking summary judgment dismissing the complaint, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME requests had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, affirmations from the doctors who were to perform the IMEs, which affirmations were sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (see id.).

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

Decision Date: December 17, 2014