Opinion
2008-2187 Q C.
Decided January 29, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 28, 2008, deemed from a judgment of the same court entered November 26, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 28, 2008 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $1,590.25.
ORDERED that the judgment is affirmed without costs.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that it had timely denied plaintiff's claims on the ground that plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). Defendant appeals from the order of the Civil Court granting plaintiff's motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken ( see CPLR 5501 [c]).
Contrary to defendant's contention, the affidavits submitted by defendant in opposition to plaintiff's motion for summary judgment were insufficient to establish that plaintiff's assignor had not appeared for IMEs ( see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721). As a result, defendant failed to raise a triable issue of fact ( see Zuckerman v City of New York, 49 NY2d 557, 562).
Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.