Appeal from an order of the Civil Court of the City of New York, Queens County (Terence C. O'Connor, J.), dated October 21, 2010. The order, insofar as appealed from as limited by the brief, denied defendant's 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 moved for summary judgment dismissing the complaint. The Civil Court found, among other things, that defendant had submitted "sufficient evidence to establish its timely and proper denial," and that "[t]he sole issue remaining for trial" is whether defendant established its defense of failure to appear at an independent
medical examination (IME). Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion for summary judgment, defendant submitted an affidavit by its no-fault litigation examiner, who stated, among other things, that defendant had requested that "National Claim Evaluations, Inc. . . . schedule an acupuncturist/ chiropractic IME of Plaintiff's [*2]assignor." Defendant did not submit an affidavit by an employee of National Claim Evaluations, Inc. to establish that the IME had been scheduled. Rather, defendant submitted an affidavit by an employee of Transcion Corporation, which managed all of the administrative requirements of Transcion Medical, P.C., who stated, among other things, that defendant had hired Transcion Medical, P.C. to schedule IMEs of the assignor. In view of the foregoing discrepancy, the Civil Court properly determined that defendant had failed to establish its defense based upon the failure of plaintiff's assignor to appear at an IME.

Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 11, 2012