Health Evolve Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50691(U))

Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. Diamond Law Group, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 16, 2016. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, insofar as is relevant to this appeal, defendant cross-moved for summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). The Civil Court denied defendant’s cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether plaintiff’s [*2]assignor had failed to appear for the scheduled IMEs.

The affirmations and affidavits defendant submitted from the medical providers who were to perform the IMEs of plaintiff’s assignor were sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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 Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for IMEs is granted.

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