October 30, 2015

Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))

Headnote

The court considered the denial of a provider's motion for summary judgment and the granting of the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether the defendant had established its entitlement to summary judgment dismissing the complaint based on the nonappearance of the plaintiff's assignor for independent medical examinations (IMEs). The court held that the defendant had failed to establish its entitlement to summary judgment because the affirmation from the doctor who was to perform the IMEs did not demonstrate the nonappearance of the assignor. However, the court also held that the plaintiff had failed to demonstrate its entitlement to summary judgment as the affidavit submitted by plaintiff failed to establish that the claim at issue had not been timely denied or that the defendant had issued a timely denial of claim that was conclusory, vague, or without merit as a matter of law. Therefore, the court modified the order to provide that the defendant's cross motion for summary judgment dismissing the complaint is denied.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))

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

Alleviation Medical Services, P.C. as Assignee of Jorde Adams, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 18, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues that defendant’s cross motion should have been denied. In support of a claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted an affirmation from the doctor who was to perform the IMEs. The doctor failed to demonstrate by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), the nonappearance of plaintiff’s assignor for both of the IMEs. Therefore defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted by plaintiff in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. [*2]Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 30, 2015