April 7, 2014

Healing Art Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50633(U))

Headnote

The main issues in this case were whether the defendant had timely denied the claims at issue based upon the plaintiff's assignor's failure to appear for scheduled independent medical examinations (IMEs) and whether the IME scheduling letters had been timely mailed in accordance with the office's standard mailing practices and procedures. The court noted that the only issue for trial was "the mailing of the IME scheduling letters." In support of its motion, the defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, establishing that the IME scheduling letters had been timely mailed. The court found that as the plaintiff had not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order was reversed and defendant's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Healing Art Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50633(U))

Healing Art Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50633(U)) [*1]

Healing Art Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 50633(U) [43 Misc 3d 134(A)]

Decided on April 7, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-202 K C.

Healing Art Acupuncture, P.C. as Assignee of MAURICE CLARKE, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered November 22, 2011. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied its motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The court stated that the only issue for trial was “the mailing of the IME scheduling letters.”

In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (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]). 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 motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 2014