IME no-show unsuccessfulJune 3, 2018

Pierre J. Renelique, M.D., P.C. v Park Ins. Co., 2018 NY Slip Op 50780(U)(App. Term 2d Dept. 2018)

“Defendant’s moving papers stated that the IME scheduling letters were sent to plaintiff’s assignor at “2497 Grant Avenue, Basement, Bronx, NY 10468,” but the NF-3 form submitted by plaintiff indicated that the assignor’s address was “2307 Morris Ave, #2C, Bronx NY 10453.” A presumption of receipt arises only where there is proof of a proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2013]). 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”

Clearly, the carrier was relying on the mailing of the IME letters to the attorney to make up for incorrect mailing of the letters to the Assignor.  The carrier failed (it appears) to place the LOR in the moving papers.  But even assuming this was done, was the attorney for Assignor lulled into believing that the letters were mailed to the correct address?  See Global v.  New Century Acupuncture, P.C.?  The only way not to be lulled is foe the letter to the attorney to include the address of the Assignor on the “cc:” part of the letter.

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