Total Chiropractic, P.C. v Hereford Ins. Co. (2020 NY Slip Op 51362(U))

Goldberg, Miller & Rubin, P.C. (Matthew Lavoie and Timothy Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered September 12, 2018, deemed from a judgment of that court entered October 11, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 12, 2018 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,900.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered September 12, 2018 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). A judgment was subsequently entered on October 11, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant correctly argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as plaintiff failed to establish that its claims had not been [*2]timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 [d]).

Defendant’s remaining contention lack merit.

Accordingly, the judgment is reversed, so much of the order entered September 12, 2018 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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