Opinion
No. 2010–2001KC.
2012-08-23
JAMHIL MEDICAL, P.C. as Assignee of George Brady, Respondent, v. CLARENDON NATIONAL INSURANCE COMPANY, Appellant.
Present: PESCE, P.J., WESTON and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered October 23, 2009, deemed from a judgment of the same court entered January 4, 2010 (see CPLR 5501[c] ). The judgment, entered pursuant to the October 23, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $4,229.23.
ORDERED that the judgment is reversed, without costs, the order entered October 23, 2009 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered October 23, 2009 which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken ( seeCPLR 5501[c] ).
In support of its cross motion, defendant submitted an affidavit by the president of Media Referral, Inc., an independent medical review service retained by defendant to schedule independent medical examinations (IMEs) of plaintiff's assignor. The affidavit established that Media Referral, Inc. had timely mailed the IME scheduling letters ( 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] ). Defendant also submitted an affidavit from the chiropractor/ acupuncturist who was to perform the IMEs which established that plaintiff's assignor had failed to appear for the duly scheduled IMEs ( see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ). In addition, an affidavit executed by defendant's claims examiner demonstrated that defendant had timely denied ( see St. Vincent's Hosp. of Richmond, 50 AD3d 1123;Delta Diagnostic Radiology, P.C., 17 Misc.3d 16) plaintiff's claim on the ground that plaintiff's assignor had failed to appear at the scheduled IMEs. As a result, defendant was entitled to summary judgment dismissing the complaint ( see All Borough Group Med. Supply, Inc. v. Utica Mut. Ins. Co., 31 Misc.3d 146[A], 2011 N.Y. Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ).
Accordingly, the judgment is reversed, the order entered October 23, 2009 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.