Opinion
No. 2013–1307KC.
08-06-2015
DELTA DIAGNOSTIC RADIOLOGY, P.C. as Assignee of Yves Noze, Respondent, v. HERTZ CO., Appellant.
Opinion
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 18, 2013. The order, insofar as appealed from, upon denying plaintiff's motion for summary judgment, made, in effect, CPLR 3212(g) findings in plaintiff's favor, and denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs). In an order entered April 18, 2013, insofar as appealed from, the Civil Court, upon denying plaintiff's motion, made, in effect, CPLR 3212(g) findings in plaintiff's favor, denied defendant's cross motion, and held that the only remaining issues for trial were whether defendant had properly mailed the IME scheduling letters sent to plaintiff's assignor and, if so, whether the assignor had failed to appear for the duly scheduled IMEs.
We find that defendant has failed to articulate a sufficient basis to strike the Civil Court's implicit CPLR 3212(g) findings in plaintiff's favor (see EMC Health Prods., Inc. v. Geico Ins. Co., 43 Misc.3d 139[A], 2014 N.Y. Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014] ). In addition, upon a review of the record, we find that there is a triable issue of fact regarding the propriety of the address to which the IME scheduling letters were sent. As a result, defendant is not entitled to summary judgment dismissing the complaint (see Zuckerman v. City of New York, 49 N.Y.2d 557 1980 ).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.