October 18, 2019

Atlas Orthosurgery, P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51697(U))

Headnote

The relevant facts considered by the court were that Atlas Orthosurgery, P.C. was seeking to recover first-party no-fault benefits as the assignee of an individual named Jackxuell Delgado. The main issue decided was whether the defendant insurance company's motion for summary judgment to dismiss the complaint on the grounds that the plaintiff's assignor failed to appear for independent medical examinations (IMEs) was valid, and whether the plaintiff's cross motion for summary judgment should be denied. The holding of the case was that the court affirmed the order to grant the defendant's motion for summary judgment and dismiss the complaint, as the proof submitted by the defendant was sufficient to establish the proper mailing of the IME scheduling letters. Therefore, the order was affirmed.

Reported in New York Official Reports at Atlas Orthosurgery, P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51697(U))

Atlas Orthosurgery, P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51697(U)) [*1]

Atlas Orthosurgery, P.C. v American Tr. Ins. Co.

2019 NY Slip Op 51697(U) [65 Misc 3d 139(A)]

Decided on October 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-744 K C

Atlas Orthosurgery, P.C., as Assignee of Jackxuell Delgado, Appellant,
against
American Transit Insurance Company, Respondent.

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered December 12, 2017. 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 sole contention, the proof submitted by defendant was sufficient to establish the proper mailing of the IME scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019