March 31, 2017

American Kinetics Lab, Inc. v Warner Ins. Co. (2017 NY Slip Op 50407(U))

Headnote

The main issue in this case was whether the plaintiff, as the assignee of an individual, was entitled to recover assigned first-party no-fault benefits from the defendant insurance company. The court considered the fact that the defendant had denied the claims at issue based on the assignor's failure to appear for scheduled independent medical examinations (IMEs). The court found that the defendant had timely denied the claims on this basis, and that there was no evidence to show that the IME had been mutually rescheduled. Therefore, the court denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint. The holding of the case affirmed the lower court's order, thereby denying the plaintiff the right to recover the assigned no-fault benefits.

Reported in New York Official Reports at American Kinetics Lab, Inc. v Warner Ins. Co. (2017 NY Slip Op 50407(U))

American Kinetics Lab, Inc. v Warner Ins. Co. (2017 NY Slip Op 50407(U)) [*1]

American Kinetics Lab, Inc. v Warner Ins. Co.

2017 NY Slip Op 50407(U) [55 Misc 3d 131(A)]

Decided on March 31, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ.
2015-1953 Q C

American Kinetics Lab, Inc., as Assignee of Mahamadou Camara, Appellant,
against
Warner Insurance Company, Respondent.

Law Office of Emilia I. Rutigliano, P.C., Marina Josovich, Esq., for appellant. Gullo & Associates, LLC, Natalie Socorro, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered June 16, 2015. 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 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, finding that defendant established that it had timely denied the claims at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s sole argument on appeal, defendant did not raise an issue of fact as to whether the first scheduled IME had been mutually rescheduled, let alone establish a mutual rescheduling as a matter of law (see generally Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Accordingly, the order is affirmed.

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 31, 2017