LENEX SERVICES INC v. GLOBAL LIBERTY INS OF NY (2020)

Supreme Court, Appellate Term, New York.

LENEX SERVICES, INC., as Assignee of Timothy Wallace, Respondent, v. GLOBAL LIBERTY INS. OF NY, Appellant.

2019-133 K C

Decided: November 13, 2020

PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's 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).

Contrary to defendant's contention, defendant's moving papers were insufficient to establish that the letters scheduling IMEs had been properly addressed and mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff's assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.

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

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