September 15, 2016

Restoration Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51325(U))

Headnote

The facts of the case involved Restoration Chiropractic, P.C. seeking to recover assigned first-party no-fault benefits from New York Central Mutual Fire Insurance Company. The defendant had denied the plaintiff's claims on the basis that the assignor had failed to appear for independent medical examinations (IMEs) that were scheduled. The main issue decided by the court was whether the defendant's motion for summary judgment dismissing the complaint was justified based on the assignor's failure to appear for the scheduled IMEs. The court held that the proof submitted by the defendant was sufficient to establish that the IME scheduling letters and denial of claim forms had been properly mailed, and that the assignor had indeed failed to appear for the IMEs. As a result, the court affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Restoration Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51325(U))

Restoration Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51325(U)) [*1]

Restoration Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.

2016 NY Slip Op 51325(U) [53 Misc 3d 128(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This opinion is uncorrected and will not be published in the printed Official Reports.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.
2014-510 Q C

Restoration Chiropractic, P.C., as Assignee of Fabio Gutierrez, Appellant,
against
New York Central Mutual 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 7, 2014. 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 were timely denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s argument, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the IME scheduling letters and denial of claim forms had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to plaintiff’s further argument, defendant established 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