Parkview Med. & Surgical, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51822(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered June 19, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action and so much of the first and second causes of action as sought to recover on claims that had been denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations is granted; as so modified, the order is affirmed, without 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. The Civil Court, upon denying the motion and cross motion, made, in effect, CPLR 3212 (g) findings in both parties’ favor and held that the only issues remaining for trial were defendant’s defenses that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs) and that defendant had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

In support of the branch of its cross motion seeking summary judgment dismissing the third cause of action and part of the first and second causes of action due to the assignor’s failure to appear for IMEs, defendant submitted an affidavit by a manager employed by Support Claims Services, 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, among other things, an affirmation from a doctor as well as affidavits from a chiropractor and acupuncturist, all of whom were to perform the IMEs, which affidavits were [*2]sufficient to establish that plaintiff’s assignor had failed to appear for those 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 branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action and so much of the first and second causes of action as sought to recover on claims that had been denied due to the assignor’s failure to appear for IMEs should have been granted (see id.).

However, the affidavit of defendant’s claims examiner, which was submitted In support of the branch of its cross motion seeking summary judgment dismissing so much of the first and second causes of action as sought to recover upon claims that had been denied based upon the workers’ compensation fee schedule, was insufficient (see Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action and so much of the first and second causes of action as sought to recover on claims that had been denied on the ground that plaintiff’s assignor had failed to appear for IMEs is granted.

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