March 20, 2013

Coast Med. Diagnostic, PC v Praetorian Ins. Co. (2013 NY Slip Op 50381(U))

Headnote

The court considered the defendant-insurer's motion for summary judgment dismissing the complaint, based on the insurer's claim that it had timely and properly mailed notices for independent medical examinations (IMEs) to the plaintiff's assignor, who failed to appear. The main issue decided was whether the insurer had made a prima facie showing of entitlement to summary judgment, which was ultimately upheld. The holding of the court was that the defendant's motion for summary judgment dismissing the complaint was granted, as the insurer had established that it had properly mailed the IME notices and the plaintiff did not raise a triable issue with respect to the assignor's nonappearance or the reasonableness of the notices. Therefore, the defendant's motion was granted and the judgment was entered accordingly.

Reported in New York Official Reports at Coast Med. Diagnostic, PC v Praetorian Ins. Co. (2013 NY Slip Op 50381(U))

Coast Med. Diagnostic, PC v Praetorian Ins. Co. (2013 NY Slip Op 50381(U)) [*1]

Coast Med. Diagnostic, PC v Praetorian Ins. Co.

2013 NY Slip Op 50381(U) [38 Misc 3d 148(A)]

Decided on March 20, 2013

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570755/12.

Coast Medical Diagnostic, PC a/a/o Otis Johnson, Plaintiff-Respondent, – –
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered April 25, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered April 25, 2011, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 20, 2013