Valdan Acupuncture, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51705(U))

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Selina Chin and David M. Gottlieb of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered June 11, 2018. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion to compel discovery and denied the branch of defendant’s cross motion seeking summary judgment dismissing, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations, so much of the complaint as sought to recover upon a claim for the sum of $1,224.22.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations, so much of the complaint as sought to recover upon a claim for the sum of $1,224.22 is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as granted plaintiff’s motion to compel discovery and denied the branch of defendant’s cross motion which had sought summary judgment dismissing so much of the complaint as sought to recover upon a claim for the sum of $1,224.22 on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Defendant established that initial and follow-up letters scheduling IMEs had been timely [*2]mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claim seeking to recover the sum of $1,224.22 had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to the branch of defendant’s cross motion seeking summary judgment dismissing, on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs, so much of the complaint as sought to recover upon a claim for the sum of $1,224.22, defendant is entitled to summary judgment on this branch of its cross motion.

Defendant failed to establish any basis to disturb the Civil Court’s order granting plaintiff’s motion to compel discovery.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs, so much of the complaint as sought to recover upon a claim for the sum of $1,224.22 is granted.

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