October 27, 2017

Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co. (2017 NY Slip Op 51461(U))

Headnote

The court considered a dispute between Irina Acupuncture, P.C., and Nationwide Affinity Insurance Company regarding the payment of first-party no-fault benefits. Irina Acupuncture, P.C., sought summary judgment on the first two causes of action, while Nationwide Affinity Insurance Company sought summary judgment dismissing those causes of action. The main issues decided were whether the first independent medical examination had been scheduled to be held within 30 days of the insurance company's receipt of the claims, as required by 11 NYCRR 65-3.5 (d). The court held that the Civil Court properly granted Irina Acupuncture, P.C.'s motion for summary judgment and denied Nationwide Affinity Insurance Company's cross motion on the ground that the first independent medical examination had not been scheduled within the required timeframe. Therefore, the order granting summary judgment to Irina Acupuncture, P.C., was affirmed.

Reported in New York Official Reports at Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co. (2017 NY Slip Op 51461(U))

Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co. (2017 NY Slip Op 51461(U)) [*1]

Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co.

2017 NY Slip Op 51461(U) [57 Misc 3d 146(A)]

Decided on October 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
NO. 2014-2529 Q C

Irina Acupuncture, P.C., as Assignee of Andrew Pantin, Respondent,
against
Nationwide Affinity Insurance Company, Appellant.

Gialleonardo, Frankini & Harms (Doris Rinck, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered May 14, 2014. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment on the first two causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as granted the branches of plaintiff’s motion seeking summary judgment on the first two causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

Contrary to defendant’s argument, the Civil Court properly granted the branches of plaintiff’s motion seeking summary judgment on the first two causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that the first independent medical examination had not been scheduled to be held within 30 days of defendant’s receipt of the claims underlying those causes of action, as required by 11 NYCRR 65-3.5 (d) (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see also O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 27, 2017