The Rogak Report: 05 Nov 2009 (Part 1) ** No Fault - IME No-Shows **
PROOF OF MAILING OF IME NOTICES AND LACK OF OPPOSITION ESTABLISHES NO-SHOW DEFENSE
Radiology Today, P.C. a/a/o Charles Rawlins v
GEICO Ins. Co.
2009 NY Slip Op 52208(U) Decided on October 23, 2009 Appellate Term, Second Department Edited by Lawrence N. Rogak
Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered July 3, 2008. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed without costs and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff's assignor's failure to appear for independent medical examinations (IMEs). The Civil Court denied defendant's unopposed motion on the ground that defendant had failed "to show [that] the IME notices were mailed to [the] claimant."
In support of its motion, defendant submitted the affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently set forth the standard office practice and procedure for the generation and mailing of IME notices designed to ensure that said notices were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ; cf. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff's assignor failed to appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant's unopposed motion for summary judgment dismissing the complaint should have been granted.
Comment: This decision would have been more helpful if it gave details as to how the affidavits established the standard office practice and procedure, but a win is a win.