Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 23, 2011. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

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 motion for summary judgment dismissing the complaint. On appeal, defendant argues that it is entitled to summary judgment dismissing the complaint because it demonstrated that plaintiff's assignor had failed to appear for properly scheduled independent medical examinations (IMEs).

In order to establish its entitlement to summary judgment dismissing the complaint based on the failure of plaintiff's assignor to appear at scheduled IMEs, defendant was required to demonstrate that its initial and follow-up IME scheduling letters had been properly mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). While defendant submitted an affidavit executed by an employee of Medical Consultants Network, the company which had been retained by defendant to schedule IMEs, the affidavit did not sufficiently describe a standard office practice or procedure that would ensure that the scheduling letters were [*2]properly addressed and mailed (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]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled.

Accordingly, the order denying defendant's motion for summary judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 05, 2013