May 30, 2014

Healthy Way Acupuncture, P.C. v Allstate Ins. Co. (2014 NY Slip Op 50841(U))

Headnote

The court considered a motion for summary judgment made by the defendant, an insurance company, to dismiss a complaint brought by the plaintiff, an acupuncture clinic, for first-party no-fault benefits. The insurance company established that it had timely and properly mailed notices for independent medical examinations (IMEs) to the plaintiff's assignor, and that the assignor failed to appear for the examinations. The plaintiff did not specifically deny the assignor's nonappearance or raise a triable issue with respect to the mailing or reasonableness of the notices. Therefore, the court held that the insurance company had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued, and affirmed the lower court's decision to grant the insurance company's motion for summary judgment.

Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Allstate Ins. Co. (2014 NY Slip Op 50841(U))

Healthy Way Acupuncture, P.C. v Allstate Ins. Co. (2014 NY Slip Op 50841(U)) [*1]

Healthy Way Acupuncture, P.C. v Allstate Ins. Co.

2014 NY Slip Op 50841(U) [43 Misc 3d 141(A)]

Decided on May 30, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 30, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan,JJ.
570175/14

Healthy Way Acupuncture, P.C. a/a/o Anthony Ng, Plaintiff-Appellant, –
against
Allstate Insurance Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered September 30, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered September 30, 2013, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013] American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 30, 2014