March 27, 2013

City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50430(U))

Headnote

The court considered the defendant-insurer's motion for summary judgment to dismiss a complaint regarding no-fault claims. The main issue decided was whether the insurer made a prima facie showing of entitlement to summary judgment by establishing that it timely and properly mailed notices for independent medical examinations (IMEs) to the plaintiff's assignor, and that the assignor failed to appear. The court held that the defendant-insurer did make a prima facie showing of entitlement to summary judgment by establishing that it timely and properly mailed the IME notices to the plaintiff's assignor, and that the assignor failed to appear. As a result, the court reversed the previous order, granted the motion in its entirety, and dismissed the complaint.

Reported in New York Official Reports at City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50430(U))

City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50430(U)) [*1]

City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co.

2013 NY Slip Op 50430(U) [39 Misc 3d 128(A)]

Decided on March 27, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570962/12.

City Care Acupuncture, PC a/a/o Aaron Hope, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated August 30, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), dated August 30, 2012, insofar as appealed from, reversed, with $10 costs, motion granted in toto and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the no-fault claims at issue by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560). The assignor’s “denial of receipt, standing alone, is insufficient” (Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 27, 2013