Opinion
No. 570296/12.
2012-11-28
SK PRIME MEDICAL SUPPLY, INC., a/a/o Anthony Gumbs, Plaintiff–Respondent, v. HERTZ CLAIM MANAGEMENT CORP. d/b/a Hertz Rent A Car and Hertz Corporation, Defendant–Appellant.
Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered May 31, 2011, as denied its motion for summary judgment dismissing the complaint.
Present: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Order (Ruben Franco, J.), entered May 31, 2011, affirmed, with $10 costs.
We sustain so much of the order issued below as denied defendant's motion for summary judgment dismissing this first-party no-fault action. While defendant contends that the claim for payment was premature because of plaintiff's assignor's failure to appear for independent medical examinations (IMEs), defendant failed to establish, prima facie, that the notices scheduling the IMEs were properly addressed and mailed. In this regard, defendant's moving submission heavily relied on an affidavit submitted by an employee of the entity retained by defendant to schedule the IMEs in this matter. The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her office's mailing practices and procedures. Thus, defendant “failed to establish that the practice and procedure was designed to ensure that the [notices] were addressed to the proper party and properly mailed” (Westchester Med. Ctr. v.. Countrywide Ins. Co., 45 AD3d 676 [2007] ). In any event, plaintiff, in opposition, raised triable issues by way of proof tending to indicate that the IME notices were misdelivered to the wrong address.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.