May 18, 2015

Bay Ls Med. Supplies, Inc. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50790(U))

Headnote

The relevant facts the court considered were that Bay LS Medical Supplies, Inc. was seeking to recover assigned first-party no-fault benefits from Chubb Indemnity Insurance Company. Plaintiff moved for summary judgment, while the defendant cross-moved for summary judgment, arguing that the assignor had failed to appear for properly scheduled independent medical examinations (IMEs). The main issue decided was whether the assignor was properly notified of the IMEs, as the scheduling letters were addressed to someone with a slightly different name than the assignor. The holding of the case was that the IME scheduling letters did not provide sufficient notice that the assignor was to appear for the IMEs, so the court affirmed the order denying the defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Bay Ls Med. Supplies, Inc. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50790(U))

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

Bay LS Medical Supplies, Inc. as Assignee of JOHNFI CANELA, Respondent,
against
Chubb Indemnity Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 28, 2013. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for properly scheduled independent medical examinations (IMEs). The Civil Court, upon denying the motion and cross motion, made CPLR 3212 (g) findings in both parties’ favor and found that there was a triable issue of fact “with respect to whether the assignor was properly notified of the IMEs because the scheduling letters were addressed to one John Canela, but the assignor’s name as it appears on the NF-2 is Jhonffi Canela.”

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

As it cannot be said, as a matter of law, that the IME scheduling letters addressed to John Canela provided sufficient notice that plaintiff’s assignor, Jhonffi Canela (misspelled “Johnfi” by plaintiff in the summons and complaint), was to appear for the IMEs, the Civil Court properly denied defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 18, 2015