American Transit Insurance v. Longevity Medical Supply, Inc.

Friedman, J.R,

dissents in a memorandum as follows: I respectfully dissent.

The point on which the majority affirms the denial of summary judgment to the plaintiff insurer — the absence of evidence as to whether the independent medical examinations (IMEs) for which the insured injured person failed to appear were scheduled within the 30-day time frame contemplated by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d)— was not raised by the defendant medical vendor (Longevity) in its opposition to plaintiff’s motion for summary judgment. Rather, Longevity raised the point for the first…