Marshall & Marshall, PLLC (Tracy Bader Pollack and Jeffrey Kadushin of counsel), for Appellant. Gabriel & Shapiro, LLC (Justin Rosenbaum of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated March 18, 2019. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.

ORDERED that the order is reversed, without costs, defendant's motion for summary judgment dismissing the complaint is granted, and plaintiff's cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the District Court which denied defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and granted plaintiff's cross motion for summary judgment.

Defendant's moving papers demonstrated, prima facie, that plaintiff's assignor had failed to appear for either of two duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that upon receipt of the claim at issue, defendant timely mailed the denial of claim form (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), which denied the claim on that ground. Plaintiff failed to raise a triable issue of fact in opposition. Defendant's motion for summary judgment dismissing the complaint should therefore have been granted and plaintiff's cross motion should have been denied.

Accordingly, the order is reversed, defendant's motion for summary judgment dismissing the complaint is granted, and plaintiff's cross motion for summary judgment is denied.

ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.

Decision Date: August 27, 2020