June 10, 2022

Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y. (2022 NY Slip Op 50569(U))

Headnote

The relevant facts the court considered in this case were that Columbus Imaging Center, LLC was seeking to recover assigned first-party no-fault benefits from Erie Insurance Company of New York. The main issue decided was whether defendant needed to demonstrate, as part of its prima facie case, that the first independent medical examination scheduling letter had been sent to plaintiff's assignor within 15 days of defendant's receipt of either the NF-2 or a claim received from another provider. The holding of the court was that defendant did not need to demonstrate this as part of its prima facie case, and therefore the order granting defendant's motion for summary judgment and denying plaintiff's cross motion for summary judgment was affirmed.

Reported in New York Official Reports at Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y. (2022 NY Slip Op 50569(U))

Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y. (2022 NY Slip Op 50569(U)) [*1]

Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y.

2022 NY Slip Op 50569(U) [75 Misc 3d 137(A)]

Decided on June 10, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-73 K C

Columbus Imaging Center, LLC, as Assignee of Martinez, Tiena, Appellant,
against
Erie Insurance Company of New York, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Robyn M. Brilliant (Robyn M. Brilliant 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 September 27, 2019. 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 granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion for summary judgment, defendant did not need to demonstrate, as part of its prima facie case, that the first independent medical examination scheduling letter had been sent to plaintiff’s assignor within 15 days of defendant’s receipt of either the NF-2 or a claim received from another provider (see City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 11 NYCRR 65-3.5 [b]; Appendix 13; see also State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454 [2021]; Excel Prods., Inc. v Ameriprise Auto & Home, 71 Misc 3d 136[A], 2021 NY Slip Op 50435[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022