Eagle Surgical Supply, Inc. v. Citiwide Auto Leasing, Inc.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 1, 2018
• Docket: 2018 NYSlipOp 50844(U)
• Status: Published

Opinion

Eagle Surgical Supply, Inc., as Assignee of Oraude Boston, Appellant,

against

Citiwide Auto Leasing, Inc., Respondent.

Korsunskiy Legal Group, P.C. (Henry R. Guindi of counsel), for appellant. Miller, Leiby & Associates, P.C. (Melissa M. Wolin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered November 12, 2015. 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).

Contrary to plaintiff's contention, the affidavit submitted by the acupuncturist who was to perform the IMEs was sufficient to establish that plaintiff's assignor had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Furthermore, there is no merit to plaintiff's remaining argument that defendant was required to communicate with plaintiff's assignor's attorney pursuant to 11 NYCRR 65—3.6 (b). That subsection, which is not implicated here, requires an insurer to communicate with an applicant's attorney in certain situations involving claims that are tolled for outstanding verification.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018