Apollo Chiropractic Care, P.C. v Praetorian Ins. Co. (2010 NY Slip Op 50911(U))

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered August 31, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered August 31, 2009, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that, contrary to Civil Court’s determination, defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an IME provision (see 11 NYCRR 65-1.1),since the policy “shall be construed as if such provision[] [was] embodied therein” (Insurance Law § 5103[h]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]D
ecision Date: May 24, 2010