August 24, 2011

Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51597(U))

Headnote

The court considered the defendant's motion for summary judgment to dismiss the complaint in an action to recover assigned first-party no-fault benefits. The main issue was whether the defendant established prima facie that it mailed notices of independent medical examinations to the assignor and that the assignor failed to appear. The holding of the court was that the defendant's documentary submissions did establish prima facie evidence that the notices were mailed and the assignor failed to attend the exams. In opposition, the plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor's failure to attend the exams, therefore the motion for summary judgment was granted and the complaint was dismissed.

Reported in New York Official Reports at Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51597(U))

Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51597(U)) [*1]

Harmonic Physical Therapy, P.C. v Praetorian Ins. Co.

2011 NY Slip Op 51597(U) [32 Misc 3d 140(A)]

Decided on August 24, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
570187/11.

Harmonic Physical Therapy, P.C. a/a/o Victor Giron, Plaintiff-Respondent, – –
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered December 14, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), entered December 14, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie that it mailed the notices of the independent medical examinations (IME) to the assignor and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 27 Misc 3d 139[A], 2010 NY Slip Op 50911[U] [2010]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 24, 2011