September 15, 2017

Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51186(U))

Headnote

The main issue in this case was whether the defendant's motion for summary judgment, which dismissed the complaint of the plaintiff, should be granted. The court considered the fact that the plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs), and the proof submitted by the defendant was sufficient to give rise to a presumption that the IME scheduling letters and denial of claim forms had been properly mailed. The court ultimately held that the order granting the defendant's motion for summary judgment was affirmed, with the plaintiff's remaining arguments being deemed moot or lacking merit. Therefore, the defendant's motion for summary judgment was upheld, and the complaint was dismissed.

Reported in New York Official Reports at Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51186(U))

Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51186(U)) [*1]

Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co.

2017 NY Slip Op 51186(U) [57 Misc 3d 130(A)]

Decided on September 15, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-1102 K C

Sama Physical Therapy, P.C., as Assignee of Sherod, Hill, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Gullo & Associates, LLP (Cristina Carollo, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 1, 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the IME scheduling letters and the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining arguments are either moot or lack merit.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017