Metro Psychological Servs., P.C. v. ELRAC, Inc.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 30, 2018
• Docket: 2018 NYSlipOp 51760(U)
• Status: Published

Opinion

Metro Psychological Services, P.C., as Assignee of Michel Lesly, Appellant,

against

ELRAC, Inc., Doing Business as Enterprise Rent-A-Car, Respondent.

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Brand, Glick & Brand, P.C. (Jason P. Bertuna 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 20, 2015. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

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) and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's arguments as to defendant's motion, the proof submitted by defendant was sufficient to demonstrate the proper mailing of the denial of claim form at issue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and 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]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018