March 12, 2015

I.V. Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50380(U))

Headnote

The court considered the motion for summary judgment brought by the defendant, who denied the claims at issue based on the failure of the plaintiff's assignor to appear for independent medical examinations (IMEs). The main issue decided was whether the IME scheduling letters had been timely and properly mailed, and whether the plaintiff's assignor had failed to appear for the IMEs. The court held that the defendant's denial of claim forms were timely and proper, and that the IME requests had been timely mailed. Affidavits from the chiropractors who were to perform the IMEs were also submitted and were found to be sufficient to establish that the plaintiff's assignor had failed to appear for the IMEs. Therefore, the court reversed the order and granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at I.V. Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50380(U))

I.V. Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50380(U)) [*1]

I.V. Med. Supply, Inc. v Praetorian Ins. Co.

2015 NY Slip Op 50380(U) [47 Misc 3d 129(A)]

Decided on March 12, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2298 K C

I.V. Medical Supply, Inc. as Assignee of SABRINA JOHNSON, Respondent,
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered August 3, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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 it had timely and properly denied the claims at issue based on the failure of plaintiff’s assignor to appear for duly scheduled independent medical examinations (IMEs). Insofar as is relevant to this appeal, the Civil Court, made, in effect, CPLR 3212 (g) findings that defendant’s denial of claim forms were timely and proper, and that the sole issues for trial were whether the IME scheduling letters had been timely and properly mailed and whether plaintiff’s assignor had failed to appear for duly scheduled IMEs.

In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME requests had been timely mailed (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]). Defendant also submitted affidavits from the chiropractors who were to perform the IMEs, which were sufficient to establish that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 12, 2015