Cite as: Orthotech Express Corp. v. MVAIC, 570469/12, NYLJ 1202587049786, at *1 (App, Tm. 1st, Decided October 5, 2012)

Before: Shulman, J.P., Hunter, Jr., Torres, JJ.

Decided: October 5, 2012




Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered August 31, 2011, which denied its motion for summary judgment dismissing the complaint.


Order (Fernando Tapia, J.), entered August 31, 2011, affirmed, with $10 costs.

We agree that this first-party no-fault action is not ripe for summary dismissal. While defendant contends that the claim for payment was premature because of plaintiff's assignor's failure to appear for independent medical examinations (IMEs), defendant failed to establish, prima facie, that the notices scheduling the IMEs were properly addressed and mailed. In this regard, defendant's moving




submission heavily relied on an affidavit submitted by an employee of the entity retained by defendant to schedule the IMEs in this matter. The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her office's mailing practices and procedures. In the absence of any recitation of such matters as how the names and addresses on the IME notices were checked for accuracy and how the notices were picked up for mailing,* we cannot say, on this record, that the office practice and procedure followed by defendant's contractor "was designed to ensure that the [IME notices] were addressed to the proper part[ies] and properly mailed" (Westchester Med. Ctr. v. Countrywide Ins. Co., 45 AD3d 676, 677 [2007]; cf. Badio v. Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]). Inasmuch as defendant's moving submissions were insufficient to create a presumption that the IME notices were received by the proper parties, its motion for summary judgment dismissing the no-fault action




without the aid of a hired contractor.

was properly denied.


* We note, parenthetically, that defendant, in a separate affidavit addressing its own general office practices, discussed in some detail the procedures followed with respect to these very factors in circumstances where, unlike the case here, it directly responds to a no-fault claim