ALAS LIFESPAN WELLNESS PT v. CITYWIDE AUTO LEASING INC (2019)

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). Plaintiff cross-moved for summary judgment. By order entered September 2, 2015, the Civil Court denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment. Defendant's appeal from the September 2, 2015 order is deemed from a judgment that was entered on January 13, 2016 pursuant to the order (see CPLR 5501 [c]).

The record establishes that defendant had timely mailed both the IME scheduling letters and the denial of claim forms (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 duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff failed to raise an issue of fact in opposition to defendant's motion, as a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled (cf. Five Boro Psychological Servs., P.C. v Praetorian Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op. 51336[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] ).

Accordingly, the judgment is reversed, the order entered September 2, 2015 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion is denied.

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