September 15, 2015

American Tr. Ins. Co. v Clark (2015 NY Slip Op 06759)

Headnote

The relevant facts considered in this case were that plaintiff American Transit Insurance Company filed a motion for summary judgment against defendant Sky Acupuncture, P.C. and declared that the defendant was not entitled to no-fault insurance coverage for a motor vehicle accident. The issue was whether plaintiff was entitled to deny defendant Sky Acupuncture's claim due to the assignor, defendant Clark, not appearing for independent medical examinations (IMEs). The main holding of the case was that the order of the Supreme Court, New York County, which granted the plaintiff's motion for summary judgment against defendant Sky Acupuncture, P.C. and declared that they were not entitled to no-fault insurance coverage, was reversed on the law, and the declaration was vacated. The court found that plaintiff failed to establish prima facie that it was entitled to deny defendant Sky Acupuncture's claim due to the scheduling of the IMEs not complying with Insurance Department Regulations.

Reported in New York Official Reports at American Tr. Ins. Co. v Clark (2015 NY Slip Op 06759)

American Tr. Ins. Co. v Clark

2015 NY Slip Op 06759 [131 AD3d 840]

September 15, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, November 4, 2015

[*1] (September 15, 2015)

American Transit Insurance Company, Respondent,
v
James Allen Clark et al., Defendants, and Sky Acupuncture, P.C., Appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for appellant.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 7, 2014, to the extent appealed from as limited by the briefs, which granted plaintiff’s motion for summary judgment against defendant Sky Acupuncture, P.C., and declared that defendant Sky Acupuncture, P.C. is not entitled to no-fault insurance coverage for the subject motor vehicle accident, unanimously reversed, on the law, without costs, and the declaration vacated.

Plaintiff failed to establish prima facie that it was entitled to deny defendant Sky Acupuncture’s claim because Sky’s assignor, defendant Clark, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Clark did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]). Concur—Gonzalez, P.J., Acosta, Moskowitz, Richter and Feinman, JJ.