Charles Deng Acupuncture, P.C. v. Citiwide Auto Leasing

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Miller, Leiby & Associates, P.C. (Melissa M. Wolin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered November 10, 2015. The order denied plaintiff's motion for summary judgment and granted defendant's cross 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 denied plaintiff's motion for summary judgment, and granted defendant's cross motion for summary judgment dismissing the complaint on the ground that the first cause of action was premature because plaintiff had failed to provide requested verification, and that the claim underlying the second cause of action had been properly denied based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff's contention, defendant's proof was sufficient to demonstrate that it had not received the verification it had requested as to the claim underlying the first cause of action and, thus, that the first cause of action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Contrary to plaintiff's further contention, defendant's proof was sufficient to give rise to a presumption that the IME scheduling letters had been properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order is affirmed.

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