South Nassau Community Hosp. v Kemper Independence Ins. Co. (2013 NY Slip Op 51384(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated October 24, 2011. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the fourth and sixth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing the fourth and sixth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant, insofar as is relevant to this appeal, moved for summary judgment dismissing the fourth and sixth causes of action on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The District Court found, for all purposes in the action, that the denial of claim forms at issue with respect to plaintiff’s fourth and sixth causes of action had been timely mailed. However, the District Court denied the branches of defendant’s motion seeking to dismiss plaintiff’s fourth and sixth causes of action on the ground that plaintiff [*2]had raised a triable issue of fact.

In support of its motion for summary judgment, defendant submitted an affidavit by the owner of Alternative Consulting and Examinations (ACE), the entity which had scheduled the IMEs involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with ACE’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted an affidavit of its examining chiropractor, who stated that plaintiff’s assignor had failed to appear for the duly scheduled IMEs. As the District Court found, for all purposes in the action, that defendant had timely mailed the denials at issue, and as plaintiff does not challenge that finding, defendant established its prima facie entitlement to summary judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

In opposition to the motion, plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]). Further, plaintiff submitted only an affirmation of counsel, which failed to raise a triable issue of fact. Since plaintiff’s remaining contention is raised for the first time on appeal and we decline to consider it (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), defendant is entitled to summary judgment dismissing plaintiff’s fourth and sixth causes of action.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing the fourth and sixth causes of action are granted.

Nicolai, P.J., LaSalle and Tolbert, JJ., concur.
Decision Date: August 08, 2013