March 16, 2015

Acupuncture, Approach, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50318(U))

Headnote

The case involved Acupuncture, Approach, P.C. suing Allstate Insurance Company for recovery of assigned first-party no-fault benefits. Allstate appealed from an order entered by the Civil Court of the City of New York, which denied its motion for summary judgment dismissing the complaint. The main issue decided was whether the action was ripe for summary dismissal based on Allstate's claim that the assignor failed to appear for two scheduled independent medical examinations. The court held that the action was not ripe for summary dismissal because Allstate failed to establish "that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations." Therefore, the order was affirmed and the case was allowed to proceed.

Reported in New York Official Reports at Acupuncture, Approach, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50318(U))

Acupuncture, Approach, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50318(U)) [*1]

Acupuncture, Approach, P.C. v Allstate Ins. Co.

2015 NY Slip Op 50318(U) [46 Misc 3d 151(A)]

Decided on March 16, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570787/14

Acupuncture, Approach, P.C., a/a/o Camisha Vincent, Plaintiff-Respondent,
against
Allstate Insurance Company, Defendant-Appellant.

Defendant appeals from so much of an order the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered July 25, 2014, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jennifer G. Schecter, J.), entered July 25, 2014, insofar as appealed from, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. Although defendant claims that the assignor failed to appear for two scheduled independent medical examinations (IMEs), defendant failed to satisfy its initial burden of establishing, prima facie, “that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 16, 2015