W.H.O. Acupuncture, P.C. v. Travelers Home & Marine Ins. Co.

• Citation: 36 Misc.3d 152,961 N.Y.S.2d 362,2012 N.Y. Slip Op. 51707
• Decision Date: 31 August 2012
• Docket Number: No. 2010–3338QC.,2010–3338QC.
• Parties: W.H.O. ACUPUNCTURE, P.C. as Assignee of Shane Simmonds, Appellant,— v. TRAVELERS HOME AND MARINE INS. CO., Respondent.
• Court: New York Supreme Court — Appellate Division

36 Misc.3d 152
961 N.Y.S.2d 362
2012 N.Y. Slip Op. 51707

W.H.O. ACUPUNCTURE, P.C. as Assignee of Shane Simmonds, Appellant,—
v.
TRAVELERS HOME AND MARINE INS. CO., Respondent.

No. 2010–3338QC.

Supreme Court, Appellate Term,
2nd, 11th and 13th Judicial Districts.

Aug. 31, 2012.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered November 15, 2010. The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered December 16, 2010 dismissing the complaint (see CPLR 5501[c] ).
Present: PESCE, P.J., RIOS and SOLOMON, JJ.

ORDERED that the judgment is reversed, without costs, so much of the order entered November 15, 2010 as granted the branches of defendant's motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and $171.36, for dates of service August 20, 2008 through August 25, 2008, is vacated, and those branches of defendant's motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court entered November 15, 2010 as granted defendant's motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered December 16, 2010 dismissing the complaint ( seeCPLR 5501[c] ).

Plaintiff brought this suit to recover upon three claims which defendant had denied based upon the assignor's failure to appear for duly scheduled independent medical examinations (IMEs). Contrary to plaintiff's argument on appeal, defendant established the mailing of the IME scheduling letters, by submitting an affidavit by an employee of the entity which had sent the letters, which affidavit sufficiently demonstrated that the IME scheduling letters had been mailed in accordance with that entity's standard office practices and procedures ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008];Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007] ). Plaintiff's argument that the assignor was not required to respond to those IME requests because they came from a third party lacks merit, as the letters “clearly apprised...