December 22, 2017

Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2017 NY Slip Op 51869(U))

Headnote

The court considered the facts of a case where Village Medical Supply, Inc. was trying to recover first-party no-fault benefits as the assignee of Stephane Philogene. The main issue in this case was whether the plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). The court held that the affirmation submitted by the doctor who was to perform the IMEs was sufficient to establish that the plaintiff's assignor had indeed failed to appear for the scheduled IMEs. Additionally, the court found that the denial of claim forms which denied plaintiff's claims on that ground had been timely mailed. The court ultimately affirmed the order granting the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2017 NY Slip Op 51869(U))

Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2017 NY Slip Op 51869(U)) [*1]

Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co.

2017 NY Slip Op 51869(U) [58 Misc 3d 141(A)]

Decided on December 22, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-962 K C

Village Medical Supply, Inc., as Assignee of Stephane Philogene, Appellant,
against
Citiwide Auto Leasing Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant. Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 10, 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 contentions, the affirmation defendant submitted from the doctor who was to perform the IMEs of plaintiff’s assignor was sufficient to establish 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]), and defendant established that the denial of claim forms which denied plaintiff’s claims on that ground had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff’s argument regarding the tolling of defendant’s time to pay or deny the claim lacks merit (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; cf. [*2]Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Plaintiff’s remaining contention is similarly without merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017