November 9, 2018

Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))

Headnote

The court considered the fact that the plaintiff was seeking to recover assigned first-party no-fault benefits, and that the defendant had motioned for summary judgment, claiming that the plaintiff's assignor had failed to appear for independent medical examinations (IMEs). The plaintiff argued that the defendant did not mail the IME scheduling letters to the correct address, but the defendant demonstrated that the letters had been sent to the attorney representing the plaintiff's assignor. Additionally, the defendant provided proof that the assignor had indeed failed to appear for the IMEs. The main issue decided was whether the defendant had properly sent the IME scheduling letters and whether the plaintiff's assignor had failed to appear for the IMEs. The holding of the court was that the order granting the defendant's motion for summary judgment and dismissing the complaint, while denying the plaintiff's cross motion for summary judgment, was affirmed.

Reported in New York Official Reports at Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))

Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U)) [*1]

Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co.

2018 NY Slip Op 51601(U) [61 Misc 3d 140(A)]

Decided on November 9, 2018

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1239 K C

Acupuncture Approach, P.C., as Assignee of Jose Luis Acosta, Appellant,
against
NY Central Mutual Fire Ins. Co., Respondent.

Gary Tsirelman, P.C. (Jennifer Raheb of counsel), for appellant. Nightingale Law, P.C. (Michael S. Nightingale of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated March 16, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied plaintiff’s cross motion for summary judgment.

While plaintiff argues that defendant did not mail its IME scheduling letters to the correct address, defendant demonstrated that copies of the IME scheduling letters had been mailed to the attorney who represented plaintiff’s assignor with respect to the accident in question (see Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Furthermore, contrary to plaintiff’s argument, the proof submitted by defendant was sufficient to establish that plaintiff’s assignor had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018