Opinion
570143/20
10-23-2020
STRAIGHT UP CHIROPRACTIC, PC, a/a/o Leeann Delgado, Plaintiff-Respondent, v. MVAIC, Defendant-Appellant.
Per Curiam.
Order (Dakota D. Ramseur, J.), entered September 6, 2019, affirmed, with $10 costs.
Civil Court correctly denied defendant's summary judgment motion as untimely, since it was made after the 120-day deadline set forth in the September 5, 2018 so-ordered stipulation/preliminary conference order, and was unaccompanied by a showing of good cause for the lateness (see CPLR 3212[a] ; Miceli v. State Farm Mut. Auto. Ins. Co. , 3 NY3d 725 [2004] ; Hernandez v. 2075-2081 Wallace Ave. Owners Corp. , 176 AD3d 467 [2019] ). Even if the motion was made timely, defendant failed to establish prima facie entitlement to summary judgment dismissing the underlying first-party no-fault claim based upon the assignor's nonappearance at scheduled independent medical examinations [IME], because the address to which the IME scheduling letters were sent used an incorrect zip code. Therefore, defendant's proof was insufficient to give rise to a presumption of receipt (see Global Liberty Ins. Co. v. New Century Acupuncture, P.C. , 161 AD3d 498 [2018] ; Delta Diagnostic Radiology, P.C. v. Citiwide Auto Leasing , 46 Misc 3d 128[A], 2014 NY Slip Op 51801[U] [App Term, 2d Dept, 2d, 11th and 13th Jud Dists [2014] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.