May 3, 2019

Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50679(U))

Headnote

The court considered the fact that Alleviation Medical Services, P.C. was seeking to recover first-party no-fault benefits. The main issues decided were that the defendant had provided sufficient proof that the independent medical examination (IME) scheduling letters were mailed properly and that the plaintiff's assignor had failed to appear for the scheduled IMEs. The court held that the defendant's motion for summary judgment dismissing the complaint was granted and the plaintiff's cross motion for summary judgment was denied. Therefore, the order was affirmed, and the defendant was awarded $25 in costs.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50679(U))

Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50679(U)) [*1]

Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co.

2019 NY Slip Op 50679(U) [63 Misc 3d 146(A)]

Decided on May 3, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2909 K C

Alleviation Medical Services, P.C., as Assignee of Pierre, James, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Nightingale Law, P.C. (Michael S. Nightingale of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 8, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s arguments, defendant’s proof sufficiently established the proper mailing of the IME scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and 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]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019