Opinion
2010-930 K C
12-16-2011
Metrostar, Inc. as Assignee of NATASHA TORRE, Respondent, v. Electric Insurance Company, Appellant.
PRESENT: : , J.P., PESCE and WESTON, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered November 24, 2009. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment.
Although defendant denied the claims on the ground that plaintiff's assignor had failed to attend scheduled independent medical examinations (IMEs), the affidavits submitted by defendant were insufficient to establish the proper mailing of the IME scheduling letters (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]). As a result, defendant was not entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is affirmed.
Steinhardt, J.P., Pesce and Weston, JJ., concur.