September 28, 2016

Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2016 NY Slip Op 51381(U))

Headnote

The main issue in this case was whether the defendant-insurer's motion for summary judgment dismissing the underlying first-party no-fault action should have been granted. The court considered the fact that the defendant failed to submit competent proof of the assignor's nonappearance at scheduled independent medical examinations (IME), and that the conclusory affidavits of defendant's IME doctors lacked probative value. The court held that the defendant's motion for summary judgment should have been denied, as there was insufficient evidence to support their claim. The decision was reversed, with the defendant's motion denied, and the case was remanded for further proceedings.

Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2016 NY Slip Op 51381(U))

Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2016 NY Slip Op 51381(U)) [*1]

Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co.

2016 NY Slip Op 51381(U) [53 Misc 3d 131(A)]

Decided on September 28, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Gonzalez, J.
570377/16

Healthy Way Acupuncture, P.C. a/a/o Jorge Tejeda, Plaintiff-Appellant,
against
Clarendon National Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered March 4, 2015, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Alexander M. Tisch, J.), entered March 4, 2015, reversed, with $10 costs, and defendant’s motion denied.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IME) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to state the basis of their recollection, some 8 years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: September 28, 2016