Excel Med. & Diagnostic, P.C. v. Park Ins. Co.

Appellate Terms of the Supreme Court of New York

Excel Med. & Diagnostic, P.C. v. Park Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 14, 2019

Docket2019 NYSlipOp 50989(U)

StatusPublished

This text of Excel Med. & Diagnostic, P.C. v. Park Ins. Co. (Excel Med. & Diagnostic, P.C. v. Park Ins. Co.) 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

Excel Med. & Diagnostic, P.C. v. Park Ins. Co., (N.Y. Ct. App. 2019).

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Opinion

Excel Medical & Diagnostic, P.C., as Assignee of Jyotsna Patel, Respondent,

against

Park Ins. Co., Appellant.

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Gary Tsirelman, P.C. (Joseph Padrucco of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 4, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 moved for summary judgment dismissing the complaint based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant's motion but, in effect pursuant to CPLR 3212 (g), limited the issue for trial to whether plaintiff's assignor had failed to appear for the scheduled IMEs.

In support of its motion, defendant submitted an affirmation from the doctor who was to perform the IMEs, which affirmation was sufficient to establish 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 view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 14, 2019

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Excel Medical & Diagnostic, P.C., as Assignee of Jyotsna Patel, Respondent,

against

Park Ins. Co., Appellant.

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Gary Tsirelman, P.C. (Joseph Padrucco of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 4, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 moved for summary judgment dismissing the complaint based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant's motion but, in effect pursuant to CPLR 3212 (g), limited the issue for trial to whether plaintiff's assignor had failed to appear for the scheduled IMEs.

In support of its motion, defendant submitted an affirmation from the doctor who was to perform the IMEs, which affirmation was sufficient to establish 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 view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 14, 2019

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Excel Med. & Diagnostic, P.C. v. Park Ins. Co., Counsel Stack Legal Research, https://law.counselstack.com/opinion/excel-med-diagnostic-pc-v-park-ins-co-nyappterm-2019.

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