October 19, 2016

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2016 NY Slip Op 51479(U))

Headnote

The court considered the fact that the defendant claimed the assignor failed to appear for two scheduled independent medical examinations (IMEs), but failed to show that the scheduling of the IMEs complied with Insurance Department Regulations. The main issue decided was whether the action seeking recovery of assigned first-party no-fault benefits was ripe for summary dismissal based on the assignor's failure to appear for the IMEs. The holding of the case was that the action was not ripe for summary dismissal, as the defendant failed to show that the scheduling of the IMEs complied with the required procedures and time frames set forth in Insurance Department Regulations. Therefore, the defendant's motion for summary judgment was reversed and denied.

Reported in New York Official Reports at Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2016 NY Slip Op 51479(U))

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2016 NY Slip Op 51479(U)) [*1]

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co.

2016 NY Slip Op 51479(U) [53 Misc 3d 137(A)]

Decided on October 19, 2016

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
570200/16

Bronx Acupuncture Therapy, P.C., a/a/o Shade McBeth, Plaintiff-Appellant,
against
Hereford Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered July 6, 2015, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Alexander M. Tisch, J.), entered July 6, 2015, reversed, with $10 costs, and defendant’s motion denied.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. Although defendant claims that the assignor failed to appear for two scheduled independent medical examinations (IMEs), defendant failed to show that the scheduling of the IMEs complied with the procedures and time frames set forth in Insurance Department Regulations (11 NYCRR) § 65-3.5(d); see American Tr. Ins. Co. v Vance, 131 AD3d 849 [2015]; American Tr. Ins. Co. v Longevity, 131 AD3d 841 [2015]; Acupuncture, Approach, P.C. v Allstate Ins. Co., 46 Misc 3d 151[A], 2015 NY Slip Op 50318[U] [App Term, 1st Dept. 2015]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests. Although this issue was raised for the first time on appeal, it presents a question of law which this Court can review (see American Tr. Ins. Co. v Longevity, 131 AD3d at 841-842).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 19, 2016