September 26, 2018

Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U))

Headnote

The court considered the defendant-insurer's motion for summary judgment to dismiss the complaint. The main issue decided was whether the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied the plaintiff's first-party no-fault claims based on a sworn independent examination report (IME) of its examining acupuncturist/chiropractor. The holding of the case was that the defendant-insurer did make a prima facie showing of entitlement to judgment as a matter of law. The court reversed the order of the Civil Court, granted the motion for summary judgment, and dismissed the complaint. The court found that the plaintiff's opposition to the motion for summary judgment did not raise a triable issue, as the affidavit of the plaintiff's principal was not based on an examination of the assignor and did not rebut the findings of the defendant's examining acupuncturist/chiropractor.

Reported in New York Official Reports at Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U))

Mingmen Acupuncture Services, PC, a/a/o Sergio Castelan, Plaintiff-Respondent,
against
Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered September 28, 2017, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered September 28, 2017, insofar as appealed from, reversed, with $10 costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent examination report [IME] of its examining acupuncturist/chiropractor, 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 acupuncture treatment (see Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U][App Term, 1st Dept 2015]); Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50643[U] [App Term, 1st Dept 2013]).

In opposition, the affidavit of plaintiff’s principal failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining acupuncturist/chiropractor, including the normal results of the range of motion testing (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421; TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 26, 2018