Can a mailing to the attorney on the IME n/s defense be dispositive on the proof and fact of the no-show?July 31, 2017

Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 50952(U)(App. Term 2d Dept. 2017)

” To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant’s moving papers failed to demonstrate that the IMEs had been properly scheduled (see Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing, 43 Misc 3d 127[A], 2014 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Infinity Health Prods., Ltd., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U]; cf. Star Med. [*2]Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]) and, thus, that it is entitled to summary judgment dismissing the complaint.”

It looks like upon proof in the record showing that the Assignor is represented by counsel, mailing of the letter to counsel will proof a no-show defense.  This would be in accordance with Marte-Rosario.

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