Columbus Imaging Ctr., LLC v Nationwide Ins. (2022 NY Slip Op 50620(U))

Law Office of Kevin J. Philbin (Kevon Lewis of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), entered September 17, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

The affidavits defendant submitted in support of its motion for summary judgment demonstrated, prima facie, that independent medical examination (IME) scheduling letters had been timely and properly mailed (see 11 NYCRR 65-3.5 [a], [d]; Appendix 13; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 71 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). However, contrary to defendant’s contention, the affidavits from the doctors who were scheduled to perform the IMEs did not establish that [*2]they possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 128[A], 2016 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, defendant failed to establish its entitlement to judgment, as a matter of law, dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for IMEs.

Plaintiff’s cross motion for summary judgment should have been denied as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.