|Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing|
|2014 NY Slip Op 50476(U) [43 Misc 3d 127(A)]|
|Decided on March 17, 2014|
|Appellate Term, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Kings County
(Reginald A. Boddie, J.), entered January 30, 2012. The order denied plaintiff's motion
for summary judgment and granted defendant's cross motion for summary judgment
dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. Defendant alleged in support of its cross motion that plaintiff's assignor had breached a condition precedent to coverage in that he had failed to appear for duly scheduled independent medical examinations (IMEs).
On appeal, plaintiff argues that defendant is not entitled to summary judgment because it failed to sufficiently establish proper mailing of the IME scheduling letters. With respect to the address to which the IME scheduling letters were mailed, defendant's cross-moving papers show that the letters were sent to plaintiff's assignor at "285 Lincoln Avenue" while the NF-3 form plaintiff submitted to defendant states that plaintiff resides at "285 Lincoln Place." A presumption of receipt arises only where there is proof of a proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679  Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff's assignor was represented by that attorney. Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled (Infinity Health Prods., Ltd., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] cf. Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2006]) and, thus, that it is entitled to summary judgment dismissing the complaint.
Notwithstanding the foregoing, plaintiff is not entitled to summary judgment. Although plaintiff's moving papers are silent as to whether the subject claims were denied, annexed to defendant's cross-moving papers were copies of defendant's denial of claim forms, which denied plaintiff's claims on multiple grounds. As a result, plaintiff did not meet its prima facie burden (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., ___ AD3d ___, 2013 NY Slip Op 08430, *6-7 [2d Dept 2013] Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168  Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). [*2]
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014