Village Med. Supply, Inc. v. Citiwide Auto Leasing Ins. Co.

Appellate Terms of the Supreme Court of New York

Village Med. Supply, Inc. v. Citiwide Auto Leasing Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 22, 2017

Docket2017 NYSlipOp 51869(U)

StatusPublished

This text of Village Med. Supply, Inc. v. Citiwide Auto Leasing Ins. Co. (Village Med. Supply, Inc. v. Citiwide Auto Leasing 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.

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Village Med. Supply, Inc. v. Citiwide Auto Leasing Ins. Co., (N.Y. Ct. App. 2017).

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Opinion

Village Medical Supply, Inc., as Assignee of Stephane Philogene, Appellant,

against

Citiwide Auto Leasing Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant. Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 10, 2014. 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 contentions, the affirmation defendant submitted from the doctor who was to perform the IMEs of plaintiff's assignor 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]), and defendant established that the denial of claim forms which denied plaintiff's claims on that ground had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff's argument regarding the tolling of defendant's time to pay or deny the claim lacks merit (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; cf. [*2]Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Plaintiff's remaining contention is similarly without merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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Village Medical Supply, Inc., as Assignee of Stephane Philogene, Appellant,

against

Citiwide Auto Leasing Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant. Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 10, 2014. 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 contentions, the affirmation defendant submitted from the doctor who was to perform the IMEs of plaintiff's assignor 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]), and defendant established that the denial of claim forms which denied plaintiff's claims on that ground had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff's argument regarding the tolling of defendant's time to pay or deny the claim lacks merit (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; cf. [*2]Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Plaintiff's remaining contention is similarly without merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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