October 5, 2012

Rainbow Med. Care, P.C. v Kemper Ins. Co. (2012 NY Slip Op 51923(U))

Headnote

The relevant facts considered by the court in Rainbow Med. Care, P.C. v Kemper Ins. Co. included the timely scheduling of independent medical examinations (IMEs) and the assignor's failure to appear for the IMEs. The main issue decided by the court was whether the defendant had established that the IME scheduling letters had been timely mailed, and whether the assignor's failure to appear for the IMEs had been sufficiently established. The holding of the court was that the defendant had sufficiently established the timely mailing of the IME scheduling letters, as well as the assignor's failure to appear for the IMEs. Therefore, the court granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Rainbow Med. Care, P.C. v Kemper Ins. Co. (2012 NY Slip Op 51923(U))

Rainbow Med. Care, P.C. v Kemper Ins. Co. (2012 NY Slip Op 51923(U)) [*1]

Rainbow Med. Care, P.C. v Kemper Ins. Co.

2012 NY Slip Op 51923(U) [37 Misc 3d 128(A)]

Decided on October 5, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2012

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

PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2010-1892 K C.

Rainbow Medical Care, P.C. as Assignee of TERENCE JOHNSON, Respondent, —
against
Kemper Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered January 15, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by the owner of the company retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with that company’s standard office practices and procedures (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 an affidavit by the chiropractor who had been retained to perform the IMEs which was sufficient to establish 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]). In addition, defendant established that the denial of claim forms, which denied the claims at issue based upon plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

Rios, J.P., Pesce and Aliotta, JJ., concur. [*2]
Decision Date: October 05, 2012