September 22, 2017

NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))

Headnote

The court considered the fact that NYS Acupuncture, P.C. was seeking to recover first-party no-fault benefits from New York Central Mutual Fire Insurance Company, but the defendant had denied the claims on the ground that the plaintiff's assignor had failed to appear for scheduled independent medical examinations. The main issue was whether the defendant was entitled to summary judgment dismissing the complaint based on the assignor's failure to appear for the examinations. The court held that the defendant was entitled to summary judgment because they had established that the letters scheduling the examinations had been timely mailed, the assignor had failed to appear for the examinations, and the claims had been timely denied on that ground. As the plaintiff failed to raise a triable issue of fact in opposition to the defendant's motion, the court granted summary judgment in favor of the defendant.

Reported in New York Official Reports at NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))

NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U)) [*1]

NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2017 NY Slip Op 51263(U) [57 Misc 3d 135(A)]

Decided on September 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2886 K C

NYS Acupuncture, P.C., as Assignee of Gamero, Alfredo, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Gullo & Associates, LLP (Natalie Socorro, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 11, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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 appeals from an order of the Civil Court denying defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In its motion, defendant established that initial and follow-up letters scheduling an IME had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that the 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). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017