June 6, 2016

GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50912(U))

Headnote

The court considered the fact that the defendant denied the claims at issue based on the plaintiff's assignor's failure to appear for independent medical examinations. However, the defendant failed to submit proof by someone with personal knowledge of the nonappearance of the plaintiff's assignor for the IMEs in question. As a result, the defendant failed to establish its prima facie entitlement to summary judgment. The main issue decided was whether the defendant had provided sufficient evidence to establish its entitlement to summary judgment. The holding of the case was that the order granting defendant's motion for summary judgment dismissing the complaint was reversed, and defendant's motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50912(U))

GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50912(U)) [*1]

GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2016 NY Slip Op 50912(U) [52 Misc 3d 127(A)]

Decided on June 6, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1771 Q C

GL Acupuncture, P.C., as Assignee of SAM D. COSMORE, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered June 26, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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.

Defendant denied the claims at issue based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). However, defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs in question (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As a result, defendant failed to establish its prima facie entitlement to summary judgment. In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: June 06, 2016