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Ve Med. Care, P.C. v. NY Cent. Mut. Fire Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts
Jun 11, 2012
35 Misc. 3d 148 (N.Y. App. Div. 2012)

Opinion

No. 2011–1234 K C.

2012-06-11

VE MEDICAL CARE, P.C. as Assignee of Luis Rengifo, Respondent, v. NY CENTRAL MUTUAL FIRE INS. CO., Appellant.


Present: PESCE, P.J., WESTON and ALIOTTA, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), dated October 4, 2010. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant submitted an affidavit by an employee of Crossland Medical Review Services, Inc. (Crossland), the entity which scheduled, on behalf of defendant, the independent medical examinations (IMEs) involved herein. The affidavit established that the IME scheduling letters had been timely 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 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ). In addition, the affidavit executed by defendant's claims examiner demonstrated that its denial of claim form, which denied the claim based upon the failure of plaintiff's assignor to appear for the IMEs, had been timely mailed ( see St. Vincent's Hosp. of Richmond, 50 AD3d 1123;Delta Diagnostic Radiology, P.C., 17 Misc.3d 16). Defendant also submitted affirmations by its examining physicians stating 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 [2006] ). Inasmuch as plaintiff submitted only an affirmation in opposition from its counsel, which affirmation failed to raise a triable issue of fact, the Civil Court should have granted defendant's motion for summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.


Summaries of

Ve Med. Care, P.C. v. NY Cent. Mut. Fire Ins. Co.

Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts
Jun 11, 2012
35 Misc. 3d 148 (N.Y. App. Div. 2012)
Case details for

Ve Med. Care, P.C. v. NY Cent. Mut. Fire Ins. Co.

Case Details

Full title:VE MEDICAL CARE, P.C. as Assignee of Luis Rengifo, Respondent, v. NY…

Court:Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Jun 11, 2012

Citations

35 Misc. 3d 148 (N.Y. App. Div. 2012)
2012 N.Y. Slip Op. 51074
954 N.Y.S.2d 762