June 3, 2016

LMS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50862(U))

Headnote

The court considered the facts surrounding the denial of the defendant's motion for summary judgment in a case where a provider was attempting to recover assigned first-party no-fault benefits. The main issue decided in this case was whether the defendant had established its entitlement, as a matter of law, to judgment dismissing the complaint on the ground that the plaintiff's assignor had failed to appear for independent medical examinations (IMEs). The court held that the defendant had failed to establish its entitlement to judgment on this ground, as the doctor who was scheduled to perform the IMEs did not establish that she possessed personal knowledge of the nonappearance of the plaintiff's assignor. Additionally, the court found that there were triable issues of fact regarding the grounds of lack of medical necessity and the amounts sought exceeding the amounts permitted by the workers' compensation fee schedule, based on affidavits submitted by the plaintiff's owner. Therefore, the court affirmed the denial of the defendant's motion for summary judgment.

Reported in New York Official Reports at LMS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50862(U))

LMS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50862(U)) [*1]

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

2016 NY Slip Op 50862(U) [51 Misc 3d 151(A)]

Decided on June 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1639 K C

LMS Acupuncture, P.C., as Assignee of JOHN H. SOSA, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered May 16, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). In the alternative, defendant sought summary judgment dismissing two claims on the ground of lack of medical necessity and dismissing theportion of each of plaintiff’s claims which exceeded the amount permitted by the workers’ compensation fee schedule.

While defendant submitted properly sworn statements by the doctor who was scheduled to perform the IMEs, the doctor did not establish that she possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs. Therefore, defendant failed to establish its entitlement, as a matter of law, to judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for IMEs (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]).

In opposition to the branches of defendant’s motion seeking summary judgment on the grounds of lack of medical necessity and that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule, plaintiff submitted affidavits from its owner, which affidavits were sufficient to demonstrate the existence of triable issues of fact.

Accordingly, the order is affirmed.

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

Decision Date: June 03, 2016