Impulse Chiropractic, P.C. v Kemper Ins. Co. (2007 NY Slip Op 50665(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered March 22, 2005. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed plaintiff’s motion, asserting, inter alia, that it timely denied plaintiff’s claims based on the assignor’s failure to appear for three scheduled independent medical examinations (IMEs). Defendant also cross-moved to dismiss the complaint pursuant to CPLR 3126 for plaintiff’s failure to appear at an examination before trial. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of, inter alia, compelling plaintiff, through its corporate officer, Roman Zhuchkan, D.C., to appear for an examination before trial within 60 days after service of a copy of its order with notice of entry. Plaintiff appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment and contends that it [*2]was entitled to summary judgment because defendant did not, among other things, proffer evidence from one with personal knowledge to establish the mailing of the verification requests which scheduled independent medical examinations (IMEs) and the failure of plaintiff’s assignor to appear for IMEs.

While defendant asserts that it timely denied plaintiff’s claims based on the assignor’s failure to appear for three scheduled IMEs, defendant did not submit evidence from anyone with personal knowledge of the mailings of the IME scheduling notices or of the nonappearances of the assignor. As a result, defendant failed to establish the existence of a triable issue of fact (see CPLR 3212; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Therefore, the court below improperly denied plaintiff’s motion for summary judgment. Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and BELEN, JJ.
IMPULSE CHIROPRACTIC, P.C.
as assignee of CECILIA RODRIGUEZ,

Appellant,

-against-
KEMPER INSURANCE CO.,

Respondent.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: March 28, 2007