Opinion
2005-704 KC.
Decided May 17, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered April 6, 2005. The order, insofar as appealed from as limited by the brief, denied plaintiff's cross motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
PRESENT: WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue ( see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U] [App Term, 2d 11th Jud Dists]). This shifted the burden to defendant to demonstrate a triable issue of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324).
In opposition to plaintiff's cross motion for summary judgment, defendant submitted an affidavit from a supervisor who was responsible for overseeing the scheduling of independent medical examinations (IMEs) and the mailing of notifications of same to plaintiff's assignor wherein she stated that her office followed a specified standard office practice which was designed to ensure that the IME requests were properly addressed and mailed to the assignor ( see D.A.V. Chiropractic P.C. v. American Tr. Ins. Co., 7 Misc 3d 133 [A], 2005 NY Slip Op 50609[U] [App Term, 2d 11th Jud Dists]). She further stated that plaintiff's assignor failed to attend any of the scheduled IMEs. The defendant denied the claims based on the nonattendance of plaintiff's assignor. Inasmuch as plaintiff neither offered a valid excuse for its assignor's nonappearance nor demonstrated that the IME requests were unreasonable under the circumstances, a triable issue was raised. Therefore, the court properly denied plaintiff's cross motion for summary judgment.
Weston Patterson, J.P., and Belen, JJ., concur.
Golia, J., concurs in a separate memorandum.
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.