May 13, 2016

Sutphin Complete Med. Care v Hereford Ins. Co. (2016 NY Slip Op 50763(U))

Headnote

The court considered the fact that the plaintiff was seeking recovery of assigned first-party no-fault benefits, and that the defendant had properly mailed notices for independent medical examinations (IMEs) to the plaintiff's assignor and his attorney. However, there were triable issues raised as to whether the assignor failed to appear for the scheduled IMEs, which precluded summary judgment for either party. The main issue decided was whether there were triable issues as to whether the assignor failed to appear for the scheduled IMEs, which would preclude an award of summary judgment to either party. The holding of the case was that the action was not ripe for summary disposition, and the court denied the defendant's motion for summary judgment and reinstated the complaint.

Reported in New York Official Reports at Sutphin Complete Med. Care v Hereford Ins. Co. (2016 NY Slip Op 50763(U))

Sutphin Complete Med. Care v Hereford Ins. Co. (2016 NY Slip Op 50763(U)) [*1]

Sutphin Complete Med. Care v Hereford Ins. Co.

2016 NY Slip Op 50763(U) [51 Misc 3d 147(A)]

Decided on May 13, 2016

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
16-101

Sutphin Complete Medical Care, a/a/o Rafael D. Baez-Villar, Plaintiff-Appellant,
against
Hereford Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered November 12, 2014, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered November 12, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, with $10 costs.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. While defendant established that it properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his attorney (see American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]), the record raises triable issues as to whether the assignor failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]). The existence of triable issues precludes an award of summary judgment to either party.

Plaintiff’s remaining contentions are unpreserved and/or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 13, 2016