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October 11, 2019

Yumi Acupuncture, P.C. v Integon Natl. Ins. Co. (2019 NY Slip Op 51628(U))

https://www.beynensonlaw.com/case-law/yumi-acupuncture-p-c-v-integon-natl-ins-co-2019-ny-slip-op51628u/

Court
Appellate Term, Second Department
Decided
October 11, 2019
Citation
2019 NY Slip Op 51628(U) · 65 Misc 3d 134(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
IME no-show
Cite as
Yumi Acupuncture, P.C. v Integon Natl. Ins. Co., 65 Misc 3d 134(A), 2019 NY Slip Op 51628(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's summary judgment motion based on the assignor's IME nonappearances was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal, Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co., decided the same day, No. 2017-2389 K C. The trial issue had been limited to nonappearance under CPLR 3212 (g).

Reported in New York Official Reports at Yumi Acupuncture, P.C. v Integon Natl. Ins. Co. (2019 NY Slip Op 51628(U))

[*1]
Yumi Acupuncture, P.C. v Integon Natl. Ins. Co.
2019 NY Slip Op 51628(U) [65 Misc 3d 134(A)]
Decided on October 11, 2019
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2019

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


PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1172 K C
Yumi Acupuncture, P.C., as Assignee of Lynch Clifton, Respondent,

against

Integon National Ins. Co., Appellant.

Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered May 4, 2018. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court, in effect, limited the issue for trial, pursuant to CPLR 3212 (g), to whether defendant established that plaintiff’s assignor had failed to appear for duly scheduled IMEs.

For the reasons stated in Allay Med. Servs., P.C., as Assignee of Mills, Keith A. v Metropolitan Gen. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-2389 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019

Similar decisions

  • NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
  • Acupuncture Now, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51596(U))The insurer's cross motion for summary judgment dismissing the claims for the assignor's IME nonappearance was upheld on appeal.
  • Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.
  • GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50912(U))The insurer failed to prove the assignor's IME nonappearance through someone with personal knowledge.
  • Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted.
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