September 15, 2016

Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51320(U))

Headnote

The court considered the defendant's motion for summary judgment dismissing the complaint from the plaintiff, a provider seeking to recover assigned first-party no-fault benefits. The main issue decided was whether the plaintiff's claims had been timely and properly denied on the ground that the plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The court held that the address to which the IME scheduling letters were addressed improperly including an apartment number was not properly before the court as it was not raised in the plaintiff's opposition to the motion. The court also found no merit to the arguments raised by the plaintiff regarding the sufficiency of the defendant's proof of timely and proper mailing of the IME scheduling letters and denial of claim forms, and that the plaintiff's assignor had failed to appear for the duly scheduled IMEs. Therefore, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51320(U))

Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51320(U)) [*1]

Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co.

2016 NY Slip Op 51320(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This opinion is uncorrected and will not be published in the printed Official Reports.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.
2014-378 K C

Infinite Ortho Products, Inc., also Known as Infinate Ortho Products, Inc., as Assignee of James Lewis, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 9, 2013. The order granted defendant’s 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. The motion was based upon the defense that plaintiff’s claims had been timely and properly denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Plaintiff argues on appeal that the address to which the IME scheduling letters were addressed improperly included an apartment number. However, that argument is not properly before this court, as it was not raised in plaintiff’s opposition to defendant’s motion, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Furthermore, there is no merit to the arguments raised by plaintiff with respect to the sufficiency of defendant’s proof that the IME scheduling letters and denial of claim forms had been timely and properly mailed (see generally St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), or that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining contention is without merit.

Accordingly, the order is affirmed.

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

Decision Date: September 15, 2016