September 15, 2016

Daily Med. Equip. Distrib. Ctr., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51323(U))

Headnote

The court considered the fact that the plaintiff, a provider seeking to recover assigned first-party no-fault benefits, had moved for summary judgment, and the defendant had cross-moved for summary judgment dismissing the complaint on the ground that the plaintiff's assignor had failed to appear for independent medical examinations (IMEs). The main issue decided was whether the defendant had established the timely and proper mailing of the IME scheduling letters and the denial of claim forms. The holding of the case was that the Civil Court denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment, and the Appellate Term affirmed this decision, with costs. The court found that the defendant had submitted affidavits that established the timely and proper mailing of the IME scheduling letters and denial of claim forms, and as a result, there was no basis to disturb the order.

Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51323(U))

Daily Med. Equip. Distrib. Ctr., Inc. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51323(U)) [*1]

Daily Med. Equip. Distrib. Ctr., Inc. v National Liab. & Fire Ins. Co.

2016 NY Slip Op 51323(U) [53 Misc 3d 127(A)]

Decided on September 15, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-494 Q C

Daily Medical Equipment Distribution Center, Inc., as Assignee of Evelyn Rivas, Appellant,
against
National Liability & Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 5, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order 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 duly scheduled independent medical examinations (IMEs). By order entered February 5, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, the affidavits submitted by defendant in support of its cross motion established the timely and proper mailing of the IME scheduling letters and the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, plaintiff has shown no basis to disturb the order from which it has appealed.

Accordingly, the order is affirmed.

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

Decision Date: September 15, 2016