Opinion
16-101
05-13-2016
Sutphin Complete Medical Care, a/a/o Rafael D. Baez-Villar, Plaintiff-Appellant, v. Hereford Ins. Co., Defendant-Respondent.
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered November 12, 2014, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
Per Curiam.
Order (Tanya R. Kennedy, J.), entered November 12, 2014, modified to deny defendant's motion for summary judgment and to reinstate the complaint; as modified, order affirmed, with $10 costs.
This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. While defendant established that it properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor and his attorney (see American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]), the record raises triable issues as to whether the assignor failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]). The existence of triable issues precludes an award of summary judgment to either party.
Plaintiff's remaining contentions are unpreserved and/or without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concurI concurI concur Decision Date: May 13, 2016