July 7, 2015

Delta Diagnostic Radiology, P.C. v Auto One Ins. Co. (2015 NY Slip Op 51032(U))

Headnote

The relevant facts the court considered were that the plaintiff, a provider seeking first-party no-fault benefits, appealed from an order of the Civil Court that granted the defendant insurance company's motion for summary judgment dismissing the complaint. The defendant's motion was based on the plaintiff's assignor failing to appear for scheduled independent medical examinations (IMEs). The main issue decided was whether the defendant was entitled to summary judgment dismissing the complaint. The court held that while the plaintiff's cross motion for summary judgment was properly denied, the defendant's motion for summary judgment dismissing the complaint should also have been denied because the defendant failed to establish its entitlement as a matter of law to the dismissal of the complaint. Therefore, the order was modified to provide that the defendant's motion for summary judgment dismissing the complaint is denied.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Auto One Ins. Co. (2015 NY Slip Op 51032(U))

Delta Diagnostic Radiology, P.C. v Auto One Ins. Co. (2015 NY Slip Op 51032(U)) [*1]

Delta Diagnostic Radiology, P.C. v Auto One Ins. Co.

2015 NY Slip Op 51032(U)

Decided on July 7, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2107 Q C

Delta Diagnostic Radiology, P.C. as Assignee of ONES CABRAL, Appellant, July 7, 2015
against
Auto One Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 27, 2012. 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 modified by providing that defendant’s 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 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.

Plaintiff’s cross motion failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Thus, plaintiff’s cross motion for summary judgment was properly denied.

However, defendant’s motion for summary judgment dismissing the complaint should also have been denied. While defendant submitted properly sworn statements by the acupuncturist and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations, and therefore defendant failed to establish its entitlement as a matter of law to the dismissal of the complaint (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]).

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment dismissing the complaint is denied.

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

Decision Date: July 07, 2015