November 26, 2013

Vit Acupuncture, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 52000(U))

Headnote

The court considered the facts of a provider seeking payment for assigned first-party no-fault benefits and an insurance company's denial of the claim due to the plaintiff's assignor's failure to appear for scheduled independent medical examinations (IMEs). The main issue decided was whether the insurance company had established its entitlement to summary judgment dismissing the complaint. The court held that the insurance company had indeed established its entitlement to summary judgment, as it had submitted sufficient evidence to demonstrate that the IME requests had been timely mailed, and that the plaintiff's assignor had failed to appear for the scheduled IMEs. Therefore, the court reversed the lower court's decision and granted the insurance company's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Vit Acupuncture, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 52000(U))

Vit Acupuncture, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 52000(U)) [*1]

Vit Acupuncture, P.C. v Praetorian Ins. Co.

2013 NY Slip Op 52000(U) [41 Misc 3d 139(A)]

Decided on November 26, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 26, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2211 K C.

Vit Acupuncture, P.C. as Assignee of SHERITA DESELLE, Respondent, —
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 15, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion.

In support of its cross motion, defendant submitted an affidavit by a supervisor of Media Referral, Inc., a company retained by defendant to schedule independent medical examinations (IMEs), which sufficiently established that the IME requests had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, an affidavit by the doctor who was to perform the physiatrist/PMR IMEs, as well as an affidavit by the chiropractor who was to perform the chiropractic IMEs, which were sufficient to establish that plaintiff’s assignor had [*2]failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied plaintiff’s claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant established its entitlement to summary judgment dismissing the complaint (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013