November 9, 2018

Acupuncture Now, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51596(U))

Headnote

The court considered whether a provider could recover first-party no-fault benefits when the assignor failed to appear for scheduled independent medical examinations (IMEs). The main issue was whether the defendant's proof sufficiently established the proper mailing of the IME scheduling letters and whether the assignor failed to appear for the scheduled IMEs. The court held that the defendant's proof did establish the proper mailing of the IME scheduling letters and the assignor's failure to appear for the scheduled IMEs. Therefore, the court affirmed the order, denying the plaintiff's motion for summary judgment and granting the defendant's cross-motion for summary judgment to dismiss the complaint.

Reported in New York Official Reports at Acupuncture Now, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51596(U))

Acupuncture Now, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51596(U)) [*1]

Acupuncture Now, P.C. v Tri State Consumers Ins. Co.

2018 NY Slip Op 51596(U) [61 Misc 3d 139(A)]

Decided on November 9, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-727 K C

Acupuncture Now, P.C., as Assignee of Bascumbe, Ynilcy, Appellant,
against
Tri State Consumers Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Laurie Dipreta, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 12, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s arguments, defendant’s proof sufficiently established the proper mailing of the IME scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018