Opinion
2015–962 K C
12-22-2017
VILLAGE MEDICAL SUPPLY, INC., as Assignee of Stephane Philogene, Appellant, v. CITIWIDE AUTO LEASING INS. CO., Respondent.
Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant. Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for respondent.
Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant.
Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ.
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 contentions, the affirmation defendant submitted from the doctor who was to perform the IMEs of plaintiff's assignor was sufficient to establish that plaintiff's assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co. , 35 AD3d 720 [2006] ), and defendant established that the denial of claim forms which denied plaintiff's claims on that ground had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ). Furthermore, plaintiff's argument regarding the tolling of defendant's time to pay or deny the claim lacks merit (see Alev Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co. , 38 Misc 3d 143[A], 2013 NY Slip Op. 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; cf. Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co. , 262 AD2d 553 [1999] ). Plaintiff's remaining contention is similarly without merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.