VITAL CHIROPRACTIC v. NATIONWIDE INSURANCE COMPANY (2019)

ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the amount of $ 342.01 is denied; as so modified, the order is affirmed, without 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 and denied plaintiff's cross motion for summary judgment.Contrary to plaintiff's contention, the proof submitted by defendant was sufficient to establish the proper mailing of the independent medical examination (IME) scheduling letters (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 IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ). Defendant further demonstrated that it had timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123) its NF-10 forms denying the claims at issue, except for the claim seeking reimbursement in the amount of $ 342.01. As to that claim, we find on this record that there is an issue of fact as to whether defendant ever received it. Consequently, neither party is entitled to summary judgment upon that claim.

Plaintiff's remaining contentions lack merit.

Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the amount of $ 342.01 is denied.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.