November 16, 2018

SAMA Physical Therapy, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51635(U))

Headnote

The court considered the facts of a provider seeking to recover first-party no-fault benefits, where the plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). The main issue decided was whether defendant's proof sufficiently established the proper mailing of the IME scheduling letters and that the plaintiff's assignor had failed to appear for the scheduled IMEs. The court held that contrary to plaintiff's arguments, defendant's proof did establish proper mailing and the assignor's failure to appear for the IMEs, leading to the denial of plaintiff's motion for summary judgment and the granting of defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at SAMA Physical Therapy, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51635(U))

SAMA Physical Therapy, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51635(U)) [*1]

SAMA Physical Therapy, P.C. v Tri State Consumers Ins. Co.

2018 NY Slip Op 51635(U) [61 Misc 3d 141(A)]

Decided on November 16, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1132 K C

SAMA Physical Therapy, P.C., as Assignee of Bascumbe, Tnilcy, Appellant,
against
Tri State Consumers Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Peter Coates, Esq., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 11, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross 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, defendant’s proof sufficiently established the proper mailing of the IME scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018