Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered November 23, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment, granted the branches of plaintiff’s cross motion seeking summary judgment upon the third, fourth, sixth and seventh causes of action, and found that the only triable issue of fact for trial with respect to the remaining first, second and fifth causes of action was whether defendant had timely mailed proper independent medical examination scheduling letters to plaintiff. So much of the appeal as is from the portion of the order which denied the branches of defendant’s motion seeking summary judgment dismissing the third, fourth, sixth and seventh causes of action, and granted the branches of plaintiff’s cross motion seeking summary judgment upon those causes of action, is deemed to be from a judgment of the same court entered December 23, 2011 awarding plaintiff the principal sum of $1,255.33 (see CPLR 5512 [a]).

ORDERED that the judgment is affirmed, without costs; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second and fifth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits,
defendant appeals from so much of an order of the Civil Court entered November 23, 2011 as denied defendant’s motion for summary judgment, granted the branches of plaintiff’s cross motion seeking summary judgment upon the third, fourth, sixth and seventh causes of action, and found that the only issue of fact for trial with respect to the remaining first, second and fifth causes of action was whether defendant had timely mailed proper independent medical examination (IME) scheduling letters to plaintiff. A judgment was subsequently entered pursuant to the order, awarding plaintiff the principal sum of $1,255.33.

In support of its motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule the IMEs. The affidavit established that the IME scheduling letters had been timely mailed to plaintiff’s assignor in accordance with the company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Contrary to the Civil Court’s order, it was not necessary to mail the scheduling letters to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b], [c] 65-3.6 [b]). Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second and fifth causes of action should have been granted (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

With respect to the claims at issue in plaintiff’s third, fourth, sixth and seventh causes [*2]action, defendant failed to show that it had denied the underlying claims or to otherwise raise a triable issue of fact. To the extent that defendant argues that it is nevertheless entitled to summary judgment upon these claims, defendant is mistaken, as defendant’s defense, based upon the assignor’s failure to appear for IMEs, is subject to preclusion if defendant failed to timely deny these claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009] see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011] but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). As a result, there is no basis to disturb the judgment entered upon plaintiff’s third, fourth, sixth and seventh causes action.

Accordingly, the judgment is affirmed, and the order, insofar as reviewed on direct appeal, is reversed and the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second and fifth causes of action are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014