Opinion
15704 Index No. 654871/19 Case No. 2021–03413
04-12-2022
AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff–Respondent, v. Louis MELENDEZ, et al., Defendants, Metro Pain Specialists, P.C., et al., Defendants–Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Manzanet–Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ.
Order and judgment (one paper), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 2, 2021, declaring that defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. are not entitled to no-fault benefits, unanimously reversed, on the law, with costs, and the judgment vacated.
Plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling defendant Louis Melendez's independent medical examination (IME) as set forth in the no-fault implementing regulations (see American Tr. Ins. Co. v. Acosta, 202 A.D.3d 567, 159 N.Y.S.3d 672 [1st Dept. 2022] ; American Tr. Ins. Co. v. Martinez, 202 A.D.3d 526, 163 N.Y.S.3d 45 [1st Dept. 2022] ). Plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame (see 11 NYCRR 65–3.5 [b], [d]).