September 27, 2016

EMA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51428(U))

Headnote

The relevant facts considered by the court were that EMA Acupuncture, P.C. sought to recover first-party no-fault benefits as the assignee of Rafael Parra, and the defendant, New York Central Mutual Fire Insurance Company, moved for summary judgment to dismiss the complaint on the ground that Parra failed to appear for independent medical examinations (IMEs). The main issue decided by the court was whether the proof submitted by the defendant was sufficient to demonstrate that Parra had failed to appear for the scheduled IMEs. The holding of the court was that the proof submitted by the defendant was indeed sufficient to give rise to a presumption that the IME scheduling letters had been properly mailed and that Parra had failed to appear for the IMEs, therefore affirming the order granting summary judgment to dismiss the complaint.

Reported in New York Official Reports at EMA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51428(U))

EMA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51428(U)) [*1]

EMA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2016 NY Slip Op 51428(U) [53 Misc 3d 134(A)]

Decided on September 27, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-949 K C

EMA Acupuncture, P.C., as Assignee of RAFAEL PARRA, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 21, 2014. 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 contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the IME scheduling letters and denial of claim forms had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

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

Decision Date: September 27, 2016