June 25, 2015

S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))

Headnote

The main issues in this case were whether the defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to the plaintiffs' assignor, and whether the assignor failed to appear. The court considered the sworn affidavits of the scheduled examining physician and chiropractor/acupuncturist, attesting to their personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME. The court held that the defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the complaint as the plaintiffs did not specifically deny the assignor's nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices. Therefore, the court reversed the order and granted defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))

S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U)) [*1]

S.A. Med., P.C. v Praetorian Ins. Co.

2015 NY Slip Op 50953(U) [48 Misc 3d 128(A)]

Decided on June 25, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570403/15

S.A. Medical, P.C., Alphaville Chiropractic, P.C., and BX2 Acupuncture, P.C. a/a/o Mejia Ramirez Darwin Antonio, Plaintiffs-Respondents, –
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered October 15, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered October 15, 2013, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiffs’ assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance, including the sworn affidavits of the scheduled examining physician and chiropractor/acupuncturist, attesting to the affiants’ personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home & Auto Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U] [App Term, 1st Dept 2015]).

In opposition to defendant’s prima facie showing, plaintiffs did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

In view of our determination, we reach no other issue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 25, 2015