Appellate Terms of the Supreme Court of New York, 2017

Active Care Med. Supply Corp. v. ELRAC, Inc.

Appellate Terms of the Supreme Court of New York · Decided December 22, 2017

Opinion

Active Care Medical Supply Corp., as Assignee of Barley, Taryn, Appellant,

against

ELRAC, Inc., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Brand, Glick & Brand, P.C. (Jason P. Bertuna, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 8, 2015. The order granted defendant's motion for summary judgment dismissing the complaint.

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 granted defendant's motion for 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 plaintiff's sole contention, the affidavit submitted by the doctor who was to perform the IMEs was sufficient to establish that plaintiff had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017