Avenue I Med., P.C. v Hertz (2013 NY Slip Op 50840(U))

Avenue I Med., P.C. v Hertz

2013 NY Slip Op 50840(U) [39 Misc 3d 145(A)]

Decided on May 13, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Avenue I Medical, P.C. as Assignee of EZE ORJINGO, Respondent, —

against

Hertz Also Known as HERTZ CLAIM MANAGEMENT, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered December 13, 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 defendant's unopposed motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by an employee of Medical Management Group of New York (MMG), an entity which had scheduled independent medical examinations (IMEs) of plaintiff's assignor on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with MMG's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., [*2]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]). Defendant also submitted affidavits by the acupuncturist, chiropractor and orthopedist who were to perform the IMEs which established that plaintiff's assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant established that the denial of claim forms, which denied the claims at issue based upon plaintiff's assignor's nonappearance at 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). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).