Sunrise Acupuncture, P.C. v Encompass Auto & Home Ins. Co. (2014 NY Slip Op 51082(U))

Decided on July 16, 2014

Defendant, as limited by its brief, appeals from so much of an amended order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), dated July 3, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Amended order (Joseph E. Capella, J.), dated July 3, 2013, insofar as appealed from, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted in its entirety. 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 plaintiff’s assignor and his counsel, 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]). With respect to the appearance issue, defendant presented competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of the defendant’s third-party biller attesting to the affiants’ “personal knowledge of the office procedures when a[n] [assignor] failed to appear for a medical exam” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

In opposition, plaintiff 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]). Plaintiff’s remaining arguments, to the extent properly considered, are lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.