Tyorkin v. Repwest Ins. Co.

Tyorkin v Repwest Ins. Co. (2021 NY Slip Op 51208(U)) [*1] Tyorkin v Repwest Ins. Co. 2021 NY Slip Op 51208(U) [73 Misc 3d 142(A)] Decided on December 10, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 10, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ 2019-1270 K C Maxim Tyorkin, M.D., as Assignee of Davon Simmons, Appellant, against Repwest Insurance Company, Respondent. Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for appellant. Bryan Cave, LLP (Matthew A. Sarles and Adam S. Bird-Ridnell of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered July 23, 2019. The order, upon, in effect, renewal, adhered to the determination in a prior order of that court entered May 24, 2018 denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). By order entered May 24, 2018, the Civil Court denied plaintiff's motion and granted defendant's cross motion. Plaintiff moved for leave to renew its motion for summary judgment and its opposition to defendant's cross motion and, upon renewal, for an order granting plaintiff's motion and denying defendant's cross motion. Plaintiff supported its motion with an affidavit from its assignor, who simply stated that he had not received the IME scheduling letters. Defendant opposed the motion. Plaintiff appeals from an order of the Civil Court entered July 23, 2019, which, upon renewal, adhered to its prior determination denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint. Contrary to plaintiff's sole contention on appeal, the affidavit by plaintiff's assignor failed to raise a triable issue of fact because plaintiff did not submit any evidence that the IME [*2]scheduling letters were not properly mailed. Plaintiff's assignor's bald conclusory denial of receipt was insufficient to rebut a presumption that the letters were received (see CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]; Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Accordingly, the order is affirmed. ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 10, 2021