Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 1, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor, who had allegedly sustained injuries in a motor vehicle accident on April 25, 2011, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, contending that plaintiff’s cause of action is barred by virtue of a default judgment in a Supreme Court declaratory judgment action. Plaintiff appeals from an order of the Civil Court denying its motion and granting defendant’s cross motion.

The record indicates that defendant commenced a declaratory judgment action in Supreme Court, New York County, against plaintiff and a number of other providers, as well as the allegedly injured assignor. In a judgment entered on default on December 4, 2012, the Supreme Court declared that plaintiff, among others, was not entitled to recover no-fault benefits arising out of the accident on April 25, 2011. In light of the default declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). “[A] declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata applies to a judgment taken by default which [as in the present case] has not been vacated” (EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d at 3).

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 14, 2015

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 29, 2013. The order, insofar as appealed from, upon granting the branch of defendant’s motion seeking to consolidate three actions for purposes of disposition of the branch of defendant’s motion seeking summary judgment dismissing the complaints therein, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint in the above-captioned action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor, who had allegedly sustained injuries in a motor vehicle accident on February 19, 2011, defendant moved to consolidate the instant action with two other actions and for summary judgment dismissing the complaint in each of the three actions, contending that each action is barred by virtue of a default judgment in a Supreme Court declaratory judgment action. Plaintiff appeals from so much of an order of the Civil Court as, upon consolidating the three actions for purposes of disposition of the motion, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint in the above-captioned action.

The record indicates that defendant commenced a declaratory judgment action in Supreme Court, Nassau County, against plaintiff and a number of other providers, as well as a number of allegedly injured assignors, asserting a fraudulent insurance scheme involving three separate car accidents, including the accident on February 19, 2011. In a judgment entered on default on April 16, 2012, the Supreme Court declared that plaintiff and a number of other providers were not entitled to recover no-fault benefits arising out of the three accidents. In light of the default declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). “[A] declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata [*2]applies to a judgment taken by default which [as in the present case] has not been vacated” (EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d at 3).

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 14, 2015

Appeal from an order of the District Court of Nassau County, Third District (Michael A. Ciaffa, J.), dated January 23, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing plaintiffs’ first through eighteenth, and twenty-first through thirty-sixth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing plaintiffs’ first through eighteenth, and twenty-first through thirty-sixth causes of action are denied.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from so much of an order as granted the branches of defendant’s motion seeking summary judgment dismissing plaintiffs’ first through eighteenth, and twenty-first through thirty-sixth causes of action.

In support of its motion, defendant submitted, among other things, two independent medical examination reports, one from a chiropractor and one from an orthopedist, which set forth a factual basis and a medical rationale for the examiners’ determination that there was a lack of medical necessity for the respective services provided (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]). However, the medical affidavits submitted by plaintiffs in opposition were sufficient to raise a triable issue of fact as to the medical necessity of the claims at issue (see Huntington Med. Plaza, P.C. v Travelers Indem. Co., 43 Misc 3d 129[A], 2014 NY Slip Op 50527[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co., 39 Misc 3d 148[A], 2013 NY Slip Op 50904[U] [App Term, 9th & 10th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing plaintiffs’ first through eighteenth and twenty-first through thirty-sixth causes of action are denied.

Tolbert, J.P., Marano and Connolly, JJ., concur.

Decision Date: July 13, 2015

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 6, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 District Court which denied defendant’s motion for summary judgment dismissing the complaint. In support of its motion, defendant

submitted an affidavit by a third-party claims adjuster, who described her office’s procedure for generating and mailing denial of claim forms for defendant, and established that the NF-10 forms which denied the claims at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]). Defendant also proffered an affirmed medical report by the doctor who had performed an independent medical examination (IME) on defendant’s behalf, which report set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services rendered (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]).

In opposition, plaintiff failed to submit medical evidence sufficient to raise a triable issue of fact as to medical necessity (see e.g. Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 9th & 10th Jud Dists 2013]). Contrary to the determination of the District Court, the opposing affirmation of plaintiff’s doctor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc [*2]3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

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

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: July 07, 2015

[*1]

Healthy Way Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2015 NY Slip Op 51049(U)

Decided on July 7, 2015

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 July 7, 2015

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

PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2013-2164 Q C

Healthy Way Acupuncture, P.C. as Assignee of ELSIE CAMBERO, Appellant, July 7, 2015

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 12, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and implicitly denied plaintiff’s cross motion to, among other things, disqualify defendant’s law firm.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff’s failure to appear. Plaintiff cross-moved to, among other things, disqualify the law firm representing defendant, pursuant to rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0), on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and implicitly denying plaintiff’s cross motion.

For the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 142[A], 2014 NY Slip Op 51315[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), the order is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: July 07, 2015

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered July 25, 2013. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for services it provided to its assignor, who had sustained injuries in a motor vehicle accident that occurred on February 5, 2010. After this action had been commenced in the Civil Court, defendant instituted a declaratory judgment action in the Supreme Court, Onondaga County, against various medical providers and their assignors, including plaintiff herein and its assignor. By order dated April 2, 2012, the Supreme Court granted a motion therein for a default judgment, which order stated that defendant “is not required or obligated to provide no-fault benefits to the defendants SHIM KARA [sic] BLAKE . . . [and] GBI ACUPUNCTURE . . . under NATIONWIDE GENERAL INSURANCE COMPANY policy number 6631 U 001752 . . . resulting from a motor vehicle accident of February 5, 2010.” Nationwide served plaintiff with a copy of the April 2, 2012 Supreme Court order, with notice of entry, in May 2012.

In January 2013, defendant moved to dismiss the Civil Court complaint pursuant to CPLR 3211 (a) (5), on the ground that the April 2, 2012 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered July 25, 2013, the Civil Court granted defendant’s motion.

Contrary to plaintiff’s contention, the Civil Court correctly determined that the instant action is barred under the doctrine of res judicata by virtue of the April 2, 2012 Supreme Court order (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default, and res [*2]judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]).

Accordingly, the order is affirmed.

Aliotta, J.P., Solomon and Elliot, JJ., concur.

Decision Date: July 07, 2015

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 8, 2013. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking to compel disclosure.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity, based upon a peer review, and served its motion upon plaintiff’s counsel on August 20, 2012. While defendant’s motion was pending, plaintiff moved, pursuant to CPLR 3124, to compel disclosure, or for alternative relief. By order entered February 8, 2013, the Civil Court granted plaintiff’s motion to the extent that defendant was directed to provide verified written discovery responses within 45 days of the date of the order or be precluded from offering the evidence at issue. Defendant appeals from this order. The Civil Court subsequently denied defendant’s motion for summary judgment with leave to renew upon determination of the present appeal.

Service of a notice of motion pursuant to CPLR 3212 automatically stays disclosure until determination of the motion, unless the court orders otherwise (CPLR 3214 [b]; see John Eric Jacoby, M.D., P.C. v Loper Assoc., 249 AD2d 277 [1998]). A court may direct otherwise if there is a legitimate need for discovery (see Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]). Thus, when defendant moved for summary judgment dismissing the complaint, an automatic stay of disclosure went into effect pursuant to CPLR 3214 (b) (see Arts4All, Ltd. v Hancock, 54 AD3d 286 [2008]), and remained in effect (see Rockaway Med. & Diagnostic, P.C. v Utica Mut. Ins. Co., 19 Misc 3d 142[A], 2008 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2008]) until February 8, 2013, when the Civil Court directed defendant to provide verified responses to plaintiff’s demands for discovery. Plaintiff demonstrated that there was a legitimate need for discovery with respect to defendant’s defense of lack of medical necessity (see Reilly, 269 AD2d at 582; Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). “Therefore, the court properly considered [plaintiff’s motion] during the pendency of [defendant’s] motion for summary judgment” (Reilly, 269 AD2d at 582).

Defendant does not deny that it received plaintiff’s demand for verified written interrogatories and notice for discovery and inspection, and defendant does not deny that it failed to respond to the demands. CPLR 3101 (a) directs “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in finding that there was a legitimate need for discovery to respond to defendant’s summary judgment motion (see e.g. CPLR 3212 [f]) and directing defendant to respond to plaintiff’s written demands for discovery (see Metropolitan Diagnostic Med. Care, P.C., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U]). Consequently, under the circumstances, the court properly granted plaintiff’s motion to compel disclosure.Accordingly, the order, insofar as appealed from, is affirmed.

Aliotta, J.P., Solomon and Elliot, JJ., concur.

Decision Date: July 07, 2015

[*1]

Delta Diagnostic Radiology, P.C. v Auto One Ins. Co.

2015 NY Slip Op 51032(U)

Decided on July 7, 2015

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 July 7, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2107 Q C

Delta Diagnostic Radiology, P.C. as Assignee of ONES CABRAL, Appellant, July 7, 2015

against

Auto One Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 27, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted 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), and denied plaintiff’s cross motion for summary judgment.

Plaintiff’s cross motion failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Thus, plaintiff’s cross motion for summary judgment was properly denied.

However, defendant’s motion for summary judgment dismissing the complaint should also have been denied. While defendant submitted properly sworn statements by the acupuncturist and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations, and therefore defendant failed to establish its entitlement as a matter of law to the dismissal of the complaint (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: July 07, 2015

[*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

[*1]

Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co.

2015 NY Slip Op 50900(U) [47 Misc 3d 156(A)]

Decided on June 17, 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 17, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, J.
570100/15

Rummel G. Mendoza, D.C., P.C., a/a/o Miriam Liburd, and L.N.L. Physical Therapy Rehabilitiation, a/a/o Miriam Liburd Plaintiffs-Respondents,

against

Chubb Indemnity Insurance Company, Defendant-Appellant.

Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered March 4, 2014, as denied its motion for summary judgment dismissing the no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation, for services rendered September 2, 2010 through November 23, 2010 and January 3, 2011 through March 14, 2011, in the amount of $2,220.

Per Curiam.

Order (James E. d’Auguste, J.), entered March 4, 2014, insofar as appealed from, reversed, with $10 costs, motion granted and the no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation in the amount of $2,220, dismissed.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the first-party no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation (“plaintiff”) in the aggregate sum of $2,220, by establishing that it timely denied the claims based on the independent medical examination (IME) report and follow-up report of its examining orthopedic doctor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further physical therapy treatment. In opposition, plaintiff failed to raise a triable issue. The affidavit of plaintiff’s treating physical therapist failed to meaningfully address the contrary findings made by defendant’s examining doctor, including the normal results of the range of motion testing of the assignor’s cervical and lumbar spine (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [1st Dept 2007]). Defendant’s remaining arguments, raised for the first time in its reply brief, are not entitled to consideration (Mehmet v Add2Net, Inc., 66 AD3d 437 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: June 17, 2015