June 11, 2012

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51068(U))

Headnote

The main issue in this case was whether the plaintiff's assignor had failed to appear at scheduled independent medical examinations (IMEs). The defendant moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment. The Civil Court found that both parties had established their prima facie cases, and that the only issue for trial was whether the assignor had failed to appear at IMEs. The defendant appealed the order denying its motion for summary judgment, and in support of its motion, submitted affidavits from its examining chiropractors stating that the assignor had failed to appear for the scheduled IMEs. In opposition, the plaintiff failed to raise a triable issue of fact. As a result, the court granted the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51068(U))

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51068(U)) [*1]

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 51068(U) [35 Misc 3d 147(A)]

Decided on June 11, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2012

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

PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2011-173 K C.

BR Clinton Chiropractic, P.C. as Assignee of HECTOR GUILANO, Respondent, —
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered October 7, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court found that defendant and plaintiff had established their prima facie cases and that the sole issue for trial was whether plaintiff’s assignor had failed to appear at scheduled independent medical examinations (IMEs). Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted, among other things, affidavits from its examining chiropractors, both of whom stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. In opposition to the motion, plaintiff submitted an affirmation from its counsel, which failed to raise a triable issue of fact. [*2]
As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 11, 2012