LACINA v. HEREFORD INSURANCE CO (2020)

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 denied its motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff's contention, the affidavits by an employee of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavits were executed the same date the IME scheduling letters were mailed, sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted an affidavit from the medical provider who was to perform the IMEs, which sufficiently established that plaintiff's assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant's claims examiner demonstrated that the denial of claim form, which denied the claim based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123). As plaintiff's remaining contentions lack merit, the Civil Court properly denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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