October 18, 2019

Body Acupuncture Care, P.C. v Erie Ins. Co. of N.Y. (2019 NY Slip Op 51695(U))

Headnote

The relevant facts the court considered in this case were that the plaintiff, Body Acupuncture Care, P.C., had filed a motion for summary judgment to recover assigned first-party no-fault benefits, while the defendant, Erie Insurance Company of New York, had filed a cross-motion for summary judgment to dismiss the complaint on the grounds that the plaintiff had failed to appear for scheduled independent medical examinations (IMEs). The main issue decided was whether the plaintiff had failed to appear for the scheduled IMEs, and whether this failure warranted the dismissal of the complaint. The holding of the case was that the defendant had established that the IMEs had been scheduled and timely mailed to the plaintiff's assignor's address, the assignor had failed to appear at the scheduled IMEs, and the claims had been timely denied on that ground. Therefore, the defendant's cross motion for summary judgment dismissing the complaint was granted, and the plaintiff's motion for summary judgment was denied.

Reported in New York Official Reports at Body Acupuncture Care, P.C. v Erie Ins. Co. of N.Y. (2019 NY Slip Op 51695(U))

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

Body Acupuncture Care, P.C., as Assignee of Joey Hermans, Respondent,
against
Erie Insurance Company of New York, Appellant.

Robyn M. Brilliant, P.C. (Robyn M. Brilliant of counsel), for appellant. Law Office of Marina Josovich, P.C. (Rachel Berzin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered November 15, 2017, deemed from a judgment of that court entered February 8, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 15, 2017 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $732.58.

ORDERED that the judgment is reversed, with $30 costs, the order entered November 15, 2017 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled independent medical examinations (IMEs). By order entered November 15, 2017, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. This appeal by defendant ensued. A judgment was subsequently entered on February 8, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In its cross motion, defendant established that initial and follow-up letters scheduling an IME had been timely mailed to the address set forth on the assignor’s sworn application for no-f[*2]ault benefits (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion. Consequently, defendant’s cross motion should have been granted and plaintiff’s motion should have been denied.

Accordingly, the judgment is reversed, the order entered November 15, 2017 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019