July 19, 2019

Brand Med. Supply, Inc. v Repwest Ins. Co. (2019 NY Slip Op 51183(U))

Headnote

The main issue in the case was whether the defendant had properly notified the plaintiff's assignor of independent medical examinations (IMEs) in a no-fault benefits case. The court considered that the IME scheduling letters were mailed to the assignor's address without using an apartment number, but the address matched the one provided by the plaintiff on their bill and by the assignor on the application for no-fault benefits. The court held that the plaintiff did not demonstrate that the defendant did not give the assignor proper notice of the IMEs, and affirmed the lower court's order granting the defendant's motion for summary judgment dismissing the complaint. The case was decided by the Supreme Court, Appellate Term, Second Department, and the decision was entered on July 19, 2019.

Reported in New York Official Reports at Brand Med. Supply, Inc. v Repwest Ins. Co. (2019 NY Slip Op 51183(U))

Brand Med. Supply, Inc. v Repwest Ins. Co. (2019 NY Slip Op 51183(U)) [*1]

Brand Med. Supply, Inc. v Repwest Ins. Co.

2019 NY Slip Op 51183(U) [64 Misc 3d 138(A)]

Decided on July 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-686 K C

Brand Medical Supply, Inc., as Assignee of Yazmin Arias, Appellant,
against
Repwest Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Bryan Cave, LLP (Laurie Belony of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 11, 2017. The order, insofar as appealed from as limited by the brief, granted defendant’s 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, defendant moved 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 plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court granted defendant’s motion.

Plaintiff’s sole argument on appeal is that defendant mailed the IME scheduling letters to the assignor’s address without using an apartment number, and that, therefore, that defendant’s motion should have been denied. However, the record demonstrates conclusively that the address to which defendant mailed the letters matched the address provided by plaintiff on its bill and by plaintiff’s assignor on the assignor’s application for no-fault benefits (NF-2). Thus, plaintiff has not demonstrated that defendant did not give the assignor proper notice of the IMEs (see Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019