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ARCO MED. NY, P.C. v. N.Y. CENT. MUT.

Appellate Term of the Supreme Court of New York, Second Department
Feb 14, 2011
2011 N.Y. Slip Op. 50184 (N.Y. App. Term 2011)

Opinion

2009-1733 K C.

Decided February 14, 2011.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), dated June 23, 2009. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiffs' cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiffs' cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ.


In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon the failure of plaintiffs' assignor to attend independent medical examinations (IMEs) which were scheduled by Crossland Medical Services, P.C. (Crossland). Plaintiffs cross-moved for summary judgment. The Civil Court denied defendant's motion and granted plaintiffs' cross motion, finding that defendant had failed to establish the mailing of the IME scheduling letters. The instant appeal by defendant ensued.

The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland's standard office practices and procedures or that the affiants had personally mailed the scheduling letters ( see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. , 17 Misc 3d 16 [App Term, 2d 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied defendant's motion for summary judgment.

However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs' supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action ( see Art of Healing Medicine, P.C. v Travelers Home Mar. Ins. Co. , 55 AD3d 644 ; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. , 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]). As a result, plaintiffs did not establish their prima facie case ( see Zuckerman v City of New York, 49 NY2d 557).

Steinhardt, J.P., Pesce and Weston, JJ., concur.


Summaries of

ARCO MED. NY, P.C. v. N.Y. CENT. MUT.

Appellate Term of the Supreme Court of New York, Second Department
Feb 14, 2011
2011 N.Y. Slip Op. 50184 (N.Y. App. Term 2011)
Case details for

ARCO MED. NY, P.C. v. N.Y. CENT. MUT.

Case Details

Full title:ARCO MEDICAL NY, P.C. and JANAA PHYSICAL THERAPY, P.C. as Assignees of…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Feb 14, 2011

Citations

2011 N.Y. Slip Op. 50184 (N.Y. App. Term 2011)

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