March 20, 2017

Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U))

Headnote

The relevant facts considered by the court in this case included the motion for summary judgment filed by the defendant-insurer in a first-party no-fault action. The main issue decided by the court was whether the defendant's motion for summary judgment should have been granted, and if the defendant had submitted competent proof of the assignor's nonappearance at scheduled independent medical examinations (IMEs). The holding of the court was that the defendant's motion for summary judgment should have been denied because it failed to submit competent proof of the assignor's nonappearance at the scheduled IMEs. The court found that the conclusory affirmation of the defendant's IME doctor lacked probative value, as she failed to adequately state the basis of her recollection that the assignor did not appear on the scheduled IME dates. Therefore, the court reversed the order granting the defendant's motion for summary judgment and denied the motion.

Reported in New York Official Reports at Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U))

Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U)) [*1]

Utica Acupuncture P.C. v Amica Mut. Ins. Co.

2017 NY Slip Op 50331(U) [55 Misc 3d 126(A)]

Decided on March 20, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2017

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570595/16

Utica Acupuncture P.C. a/a/o Volcy Jean, Plaintiff-Appellant,
against
Amica Mutual Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Paul A. Goetz, J.), entered June 24, 2014, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Paul A. Goetz, J.), entered June 24, 2014, reversed, with $10 costs, and defendant’s motion denied.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs). The conclusory affirmation of defendant’s IME doctor lacked probative value, since she failed to adequately state the basis of her recollection, some two years later, that the assignor did not appear on the scheduled IME dates (see Five Boro Med. Equip., Inc. v Praetorian Ins. Co., 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U] [App Term, 1st Dept 2016]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept 2016]).

In view of our disposition, it is unnecessary to address the waiver argument raised by plaintiff.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 20, 2017