October 11, 2019

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

Headnote

The relevant facts considered by the court were that the defendant, Integon National Ins. Co., sought summary judgement dismissing the complaint brought by Yumi Acupuncture, P.C. The issue decided was whether the plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The court held that the defendant's motion for summary judgement dismissing the complaint should be granted. The decision was based on the fact that the plaintiff's assignor had failed to appear for the IMEs, and the court's reasoning was consistent with a similar case, Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co., in which the same decision was reached.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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