SUTPHIN COMPLETE MEDICAL CARE, A/A/O RAFAEL D. BAEZ-VILLAR, plf-app, v. HEREFORD INS. CO., def-res

16-101. SUTPHIN COMPLETE MEDICAL CARE, A/A/O RAFAEL D. BAEZ-VILLAR, plf-app, v. HEREFORD INS. CO., def-res — Order (Tanya R. Kennedy, J.), entered November 12, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, with $10 costs.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. While defendant established that it properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his attorney (see American Tr. Ins. Co. v. Marte-Rosario, 111 AD3d 442 [2013]), the record raises triable issues as to whether the assignor failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Village Med. Supply, Inc. v. Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v. ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]). The existence of triable issues precludes an award of summary judgment to either party.