Opinion
2018-2354 K C
08-28-2020
QUEST SUPPLY, INC., as Assignee of Junior Perez, Respondent, v. NY CENTRAL MUTUAL FIRE INS. CO., Appellant.
Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant. Gary Tsirelman, P.C. (Devon Riley Christian of counsel), for respondent.
Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant.
Gary Tsirelman, P.C. (Devon Riley Christian of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150 is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, for summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150, on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). In support of the motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule the pre-claim IMEs, which affidavit sufficiently demonstrated that the scheduling letters had been properly mailed to plaintiff's assignor (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co. , 50 A.D.3d 1123 [2008] ). Defendant proffered affidavits from the chiropractors who were to perform chiropractic and acupuncture IMEs, which sufficiently established 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 A.D.3d 720 [2006] ). In addition, an affidavit executed by defendant's claim representative demonstrated that the denial of claim form, which denied the claim seeking to recover the sum of $1,150 based on the assignor's nonappearance at the IMEs, had been timely mailed (see St. Vincent's Hosp. of Richmond , 50 A.D.3d 1123 ).
In opposition, the affirmation of plaintiff's counsel failed to demonstrate the existence of a triable issue of fact, since no issue was raised with respect to the scheduling letters mailed directly to plaintiff's assignor (see generally MML Med. Care, P.C. v. Praetorian Ins. Co. , 46 Misc. 3d 127[A], 2014 N.Y. Slip Op. 51792[U] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists 2014] ). Plaintiff's remaining contention regarding defendant's proof that the assignor had failed to appear for the IMEs lacks merit.
Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150 is granted.
ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.