Sama Physical Therapy, P.C. v. N.Y. Cent. Mut. Fire Ins. Co.

Full title: Sama Physical Therapy, P.C., as Assignee of Sherod, Hill, Appellant, v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Sep 15, 2017

2017 N.Y. Slip Op. 51186 (N.Y. App. Term 2017)

66 N.Y.S.3d 655

Opinion

2014-1102 K C

09-15-2017

Sama Physical Therapy, P.C., as Assignee of Sherod, Hill, Appellant, v. New York Central Mutual Fire Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Gullo & Associates, LLP (Cristina Carollo, Esq.), for respondent.

MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ

PRESENT: :

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.

Gullo & Associates, LLP (Cristina Carollo, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 1, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff's arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the IME scheduling letters and the denial of claim forms at issue had been properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff's remaining arguments are either moot or lack merit.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 15, 2017