Opinion
No. 2012–925 K C.
12-17-2014
GREAT HEALTH CARE CHIROPRACTIC, P.C. as Assignee of Iswenmisire Nakpen, Appellant, v. MAYA ASSURANCE COMPANY, Respondent.
Opinion
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 18, 2012. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint on the ground that it had timely and properly denied the claim at issue on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff's motion and granted defendant's cross motion.
Plaintiff correctly argues on appeal that defendant's cross motion papers failed to establish that the letters scheduling the IMEs of plaintiff's assignor had been mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008] ; Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that it is entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff's contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 114 AD3d 33 [2013] ; Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc.3d 128[A], 2011 N.Y. Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ; see also Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010] ).
We decline plaintiff's request to limit the issues for trial (see CPLR 3212 [g] ).
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.