Opinion
No. 2011–2131KC.
2014-08-8
QUALITY PSYCHOLOGICAL SERVICES, P.C. as Assignee of Maria de la Rosa, Respondent, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.
Present: PESCE, P.J., WESTON and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 27, 2011. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's 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 so much of an order of the Civil Court as denied defendant's motion for summary judgment dismissing the complaint.In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the IME scheduling letters had been timely mailed to plaintiff's assignor in accordance with that office's standard mailing practices and procedures ( 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, among other things, an affidavit by the chiropractor who was to perform the chiropractic IMEs, which was sufficient to establish that plaintiff's assignor had failed to appear for those 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 the denial of claim form, which denied plaintiff's claim based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed ( see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc.3d 16). Consequently, defendant established its entitlement to summary judgment dismissing the complaint ( see Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65–1.1).
Accordingly, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.