American Tr. Ins. Co. v. Melendez

American Tr. Ins. Co. v Melendez (2022 NY Slip Op 02356) American Tr. Ins. Co. v Melendez 2022 NY Slip Op 02356 Decided on April 12, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: April 12, 2022 Before: Manzanet-Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ. Index No. 654871/19 Appeal No. 15704 Case No. 2021-03413 [*1]American Transit Insurance Company, Plaintiff-Respondent, v Louis Melendez, et al., Defendants, Metro Pain Specialists, P.C., et al., Defendants-Appellants. The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants. Order and judgment (one paper), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 2, 2021, declaring that defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. are not entitled to no-fault benefits, unanimously reversed, on the law, with costs, and the judgment vacated. Plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling defendant Louis Melendez's independent medical examination (IME) as set forth in the no-fault implementing regulations (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Martinez, 202 AD3d 526 [1st Dept 2022]). Plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame (see 11 NYCRR 65-3.5[b], [d]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 12, 2022