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Tri-Mount Acu. v. N.Y. Cent. Mut. Fire

Appellate Term of the Supreme Court of New York, Second Department
Mar 2, 2011
2011 N.Y. Slip Op. 50335 (N.Y. App. Term 2011)

Opinion

2009-2523 Q C.

Decided March 2, 2011.

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.


Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 29, 2009, deemed from a judgment of the same court entered November 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 29, 2009 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $4,335.

ORDERED that the judgment is reversed, without costs, the order entered October 29, 2009 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). The Civil Court granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken ( see CPLR 5501 [c]).

In support of its cross motion for summary judgment, defendant submitted an affidavit of an employee of Crossland Medical Services, P.C. (Crossland), the entity which scheduled the IMEs involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been mailed in accordance with Crossland's standard office practices and procedures ( see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. , 17 Misc 3d 16 [App Term, 2d 11th Jud Dists 2007]). In addition, an affidavit executed by defendant's litigation examiner demonstrated that the denial of claim forms, which had denied the claims based upon the failure of plaintiff's assignor to appear for the IMEs, had been timely mailed pursuant to defendant's standard office practices and procedures ( see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affirmations from its examining physicians and affidavits from its examining chiropractors, who stated that plaintiff's assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law ( see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. , 35 AD3d 720 ). Inasmuch as plaintiff submitted only a reply affirmation from its counsel, which affirmation failed to raise a triable issue of fact, defendant's cross motion for summary judgment dismissing the complaint should have been granted. In light of the foregoing, we need not reach the parties' remaining contentions.

Accordingly, the judgment is reversed, the order entered October 29, 2009 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.


Summaries of

Tri-Mount Acu. v. N.Y. Cent. Mut. Fire

Appellate Term of the Supreme Court of New York, Second Department
Mar 2, 2011
2011 N.Y. Slip Op. 50335 (N.Y. App. Term 2011)
Case details for

Tri-Mount Acu. v. N.Y. Cent. Mut. Fire

Case Details

Full title:TRI-MOUNT ACUPUNCTURE, P.C. as Assignee of Jerry Savage, Respondent, v. NY…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Mar 2, 2011

Citations

2011 N.Y. Slip Op. 50335 (N.Y. App. Term 2011)