Opinion
No. 570962/12.
2013-03-27
CITY CARE ACUPUNCTURE, PC a/a/o Aaron Hope, Plaintiff–Respondent, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant–Appellant.
Defendant, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated August 30, 2012, which denied its motion for summary judgment dismissing the complaint.
Present: LOWE, III, P.J., SHULMAN, TORRES, JJ.
PER CURIAM.
Order (Raul Cruz, J.), dated August 30, 2012, insofar as appealed from, reversed, with $10 costs, motion granted in toto and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the no-fault claims at issue by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor, and that the assignor failed to appear ( see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011],lv denied17 NY3d 705 [2011];cf. Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006] ). In opposition, plaintiff did not deny the assignor's nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices ( see Unitrin at 560). The assignor's “denial of receipt, standing alone, is insufficient” (Badio v. Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004] ).