Opinion
2014-1263 K C
07-21-2017
Utopia Equipment, Inc., as Assignee of Connell Kydron, Appellant, v. ELRAC, Inc., Doing Business as Enterprise Rent-A-Car, Respondent.
Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. Carman, Callahan & Ingham, LLP (Jeffrey P. Saxon, Esq.), for respondent.
PRESENT: :
Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant.
Carman, Callahan & Ingham, LLP (Jeffrey P. Saxon, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 8, 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 failed to appear for duly scheduled independent medical examinations (IMEs).
Plaintiff's argument—that the assignor was not required to appear for the IMEs because the IME scheduling letters came from a third party and did not advise plaintiff's assignor that they pertained to the claim involving defendant—lacks merit, as the letters clearly apprised the assignor that they were being sent on behalf of defendant's claims processing company, to whom plaintiff's assignor had submitted the NF-2 application for no-fault benefits (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In addition, contrary to plaintiff's contention, 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]; TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 53 Misc 3d 128[A], 2016 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d
Dept, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk
Decision Date: July 21, 2017