March 1, 2013

RDB Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50301(U))

Headnote

The court considered the fact that the defendant-insurer had timely and properly mailed notices for independent medical examinations (IMEs) to the plaintiff's assignor, and that the assignor failed to appear. The main issue decided was whether the defendant was entitled to summary judgment dismissing the first through sixth, and ninth through twelfth causes of action. The holding of the case was that the defendant-insurer made a prima facie showing of entitlement to summary judgment, and that the notices for IMEs were timely and properly mailed to the plaintiff's assignor. The court affirmed the order, with the modification of dismissing the first through sixth, and ninth through twelfth causes of action.

Reported in New York Official Reports at RDB Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50301(U))

RDB Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50301(U)) [*1]

RDB Med. Care, P.C. v Praetorian Ins. Co.

2013 NY Slip Op 50301(U) [38 Misc 3d 145(A)]

Decided on March 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Schoenfeld, Shulman,JJ
570041/12.

RDB Medical Care, P.C., Plaintiff-Respondent,
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered July 20, 2011, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered July 20, 2011, modified to dismiss plaintiff’s first through sixth, and ninth trough twelfth causes of action; as modified, order affirmed, without costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the no-fault claims set forth in the first through sixth, and ninth through twelfth causes of action, 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 specifically 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. [*2]
Decision Date: March 01, 2013