IME no-show – it was not mailedSeptember 21, 2017
K.O. Med., P.C. v Mercury Cas. Co., 2017 NY Slip Op 51158(U)(App. Term 2d Dept. 2017)
I reviewed the papers. The IME vendor changed the affidavit that was sent and inter-changed the defunct “Crosslands” with “Examworks” (the successor) entity. There was no discussion regarding the jural relationship between the two entities. I only realized that when I reviewed the papers after receiving the decision. Ironically, I was not the only one to miss that salient point. The Appellate Time signed an OSC granting us a stay of trial and granted the application motion to stay. Neither of these are easy feats. More finely tuned eyes saw the mistake. I will say this: they have a good set of proof-readers at that court. They find things all the time I never find.
“The Civil Court properly denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims that had been denied based upon plaintiff’s assignor’s failure to appear for the IMEs, as the proof submitted by defendant was not sufficient to give rise to a presumption that the IME scheduling letters at issue had been properly mailed”