MEDCARE SUPPLY INC v. GLOBAL LIBERTY INSURANCE (2020)

ORDERED that the order is reversed, with $30 costs, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment, and denied defendant's cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Defendant's moving papers demonstrated, prima facie, that defendant had timely mailed both the IME scheduling letters and the denial of claim form (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]). In opposition, plaintiff proffered an affirmation by its assignor's counsel, who did not assert that she possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant's motion (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

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

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