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Ctr. for Orth. Sur. v. N.Y. Ctl. Mut. Fire

Appellate Term of the Supreme Court of New York, First Department
Mar 29, 2011
2011 N.Y. Slip Op. 50473 (N.Y. App. Term 2011)

Opinion

571027/10.

Decided March 29, 2011.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about December 10, 2009, which denied its motion for summary judgment dismissing the complaint.

Order (Raul Cruz, J.), entered on or about December 10, 2009, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.


In this action to recover assigned first-party no-fault benefits, defendant's documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs ( see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. , 35 AD3d 720 , 721). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors' failure to attend the IMEs (see Inwood Hill Med. P.C. v General Assur. Co. , 10 Misc 3d 18 , 20; Marina v Praetorian Ins. Co. , 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U]). Plaintiff's contention that defendant failed to prove the mailing of the IME notices to the assignor's attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


Summaries of

Ctr. for Orth. Sur. v. N.Y. Ctl. Mut. Fire

Appellate Term of the Supreme Court of New York, First Department
Mar 29, 2011
2011 N.Y. Slip Op. 50473 (N.Y. App. Term 2011)
Case details for

Ctr. for Orth. Sur. v. N.Y. Ctl. Mut. Fire

Case Details

Full title:CENTER FOR ORTHOPEDIC SURGERY, LLP, a/a/o Derek Huff…

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

Date published: Mar 29, 2011

Citations

2011 N.Y. Slip Op. 50473 (N.Y. App. Term 2011)