Compas Med., P.C. v Elrac, Inc. (2013 NY Slip Op 51734(U))

Compas Med., P.C. v Elrac, Inc.

2013 NY Slip Op 51734(U) [41 Misc 3d 129(A)]

Decided on October 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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

Compas Medical, P.C. as Assignee of ROSELIE LOUBEAU, Appellant, —

against

Elrac, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), dated July 11, 2011. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

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, finding that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and that defendant had demonstrated that it had not received two bills, for dates of service August 26, 2009 to September 18, 2009, and September 22, 2009 to September 30, 2009.

Contrary to plaintiff's argument on appeal, the affidavit submitted by defendant contained more than a mere conclusory denial of receipt of the claim forms for dates of service August 26, 2009 to September 18, 2009, and September 22, 2009 to September 30, 2009. Rather, it sufficiently demonstrated that defendant had not received these claim forms (see Matter of Government Empls. Ins. Co. v Morris, 95 AD3d 887 [2012]; Natural Therapy Acupuncture, P.C. v Interboro Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51350[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Furthermore, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which established that the IME scheduling letters had been timely mailed in accordance with that office's standard mailing 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]). Defendant also submitted affidavits by the healthcare professionals who were to perform the IMEs which established that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Finally, an affidavit executed by defendant's claims examiner sufficiently described the standard mailing practices and procedures for denial of claim forms [*2](see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).