December 19, 2017

Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))

Headnote

The main issue in this case was whether a provider could recover assigned first-party no-fault benefits from an insurance company when the plaintiff's assignor failed to appear for independent medical examinations (IMEs). The court considered denial of claims forms which timely denied the plaintiff's claims on the ground that the assignor did not appear for scheduled IMEs, and the plaintiff failed to establish that its assignor had appeared for the IMEs or that the denials lacked merit as a matter of law. As a result, the court held that the plaintiff failed to establish its prima facie entitlement to summary judgment and affirmed the Civil Court's decision to deny the plaintiff's cross motion for summary judgment. The holding of the court was that, because the plaintiff failed to prove that its assignor had appeared for the IMEs or that the denials lacked merit as a matter of law, the plaintiff's motion for summary judgment was properly denied. Therefore, the order was affirmed, and the plaintiff's remaining contentions were deemed to lack merit.

Reported in New York Official Reports at Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))

Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U)) [*1]

Acupuncture Choice, P.C. v American Tr. Ins. Co.

2017 NY Slip Op 51822(U) [58 Misc 3d 136(A)]

Decided on December 19, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1154 K C

Acupuncture Choice, P.C., as Assignee of Equan Thomason, Appellant,
against
American Transit Ins. Co., Respondent.

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. The Law Office of Jason Tenenbaum, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 30, 2015. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered January 30, 2015, the Civil Court denied defendant’s motion and plaintiff’s cross motion, but held that the only issues for trial were whether defendant’s IME scheduling letters had been properly “generated” and whether plaintiff’s assignor had failed to appear for the IMEs. Plaintiff appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment.

As the record contains denial of claims forms which timely denied plaintiff’s claims on the ground that plaintiff’s assignor did not appear for scheduled IMEs, and plaintiff failed to establish that its assignor had appeared for the IMEs or that the denials lacked merit as a matter of law, plaintiff failed to establish its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v [*2]Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Consequently, the Civil Court properly denied plaintiff’s cross motion. Plaintiff’s remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017