IME no-show defense defeated based upon affidavit issue – prima facie denied based upon a denial which Defendant did not prove was mailed

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.,  2012 NY Slip Op 50880(U)(App. Term 2d Dept. 2012).

An affidavit executed by defendant’s litigation examiner demonstrated that denial of claim forms, which denied the claims at issue in the first, second, fourth and fifth causes of action based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). However, the affidavit did not address the claim at issue in the third cause of action. As a result, defendant established its prima facie entitlement to judgment as a matter of law as to the first, second, fourth and fifth causes of action”  (At this point, Defendant wishes he could rely on Unitrin)

“The branch of plaintiff’s cross motion seeking summary judgment on the third cause of action should have been denied as well, as plaintiff failed to demonstrate that defendant’s denial of claim form, which was attached to plaintiff’s cross motion, was not timely mailed to plaintiff, or that it was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 (a)”