November 13, 2020

Silver Lotus Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51368(U))

Headnote

The court considered the fact that the plaintiff, Silver Lotus Acupuncture, P.C., was seeking to recover assigned first-party no-fault benefits, but the defendant, Global Liberty Ins. Co. of NY, had moved for summary judgment dismissing the complaint on the grounds that the plaintiff's assignor had failed to appear for independent medical examinations (IMEs). The court determined that the record was sufficient to establish the proper mailing of the IME scheduling letters to the plaintiff's assignor and that the assignor had indeed failed to appear for the scheduled IMEs. The main issue decided was whether the plaintiff had satisfied the requirements for the assigned first-party no-fault benefits, and the holding was that the defendant's motion for summary judgment was granted because the plaintiff's assignor had failed to appear for the scheduled IMEs. The court affirmed the order, with costs, and the decision was entered on November 13, 2020.

Reported in New York Official Reports at Silver Lotus Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51368(U))

Silver Lotus Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51368(U)) [*1]

Silver Lotus Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y.

2020 NY Slip Op 51368(U) [69 Misc 3d 143(A)]

Decided on November 13, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2276 K C

Silver Lotus Acupuncture, P.C., as Assignee of Isaac Cochrane, Appellant,
against
Global Liberty Ins. Co. of NY, Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered September 7, 2018. The order granted defendant’s 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, 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).

Contrary to plaintiff’s contentions, the record was sufficient to establish the proper mailing of the IME scheduling letters to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining arguments are improperly raised for the first time on appeal and/or lack merit (see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020