Daily Med. Equip. Distrib. Ctr., Inc. v. Citiwide Auto Leasing

Appellate Terms of the Supreme Court of New York

Daily Med. Equip. Distrib. Ctr., Inc. v. Citiwide Auto Leasing

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 3, 2019

Docket2019 NYSlipOp 50681(U)

StatusPublished

This text of Daily Med. Equip. Distrib. Ctr., Inc. v. Citiwide Auto Leasing (Daily Med. Equip. Distrib. Ctr., Inc. v. Citiwide Auto Leasing) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Daily Med. Equip. Distrib. Ctr., Inc. v. Citiwide Auto Leasing, (N.Y. Ct. App. 2019).

Pincite

Opinion

Daily Medical Equipment Distribution Center, Inc., as Assignee of Taylor, Andrew, Appellant,

against

Citiwide Auto Leasing, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Miller, Leiby & Associates, P.C. (Eve Pachter of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2016. The order granted 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, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant submitted an affidavit by the office manager of National Claims Evaluations, Inc., which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the 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]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at [*2]722). As defendant's moving papers established that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019

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Daily Medical Equipment Distribution Center, Inc., as Assignee of Taylor, Andrew, Appellant,

against

Citiwide Auto Leasing, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Miller, Leiby & Associates, P.C. (Eve Pachter of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2016. The order granted 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, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant submitted an affidavit by the office manager of National Claims Evaluations, Inc., which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the 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]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at [*2]722). As defendant's moving papers established that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant's motion, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019

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Daily Med. Equip. Distrib. Ctr., Inc. v. Citiwide Auto Leasing, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daily-med-equip-distrib-ctr-inc-v-citiwide-auto-leasing-nyappterm-2019.

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