October 18, 2012

W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 52046(U))

Headnote

The court considered the issue of whether the plaintiff, a provider seeking to recover assigned first-party no-fault benefits, was entitled to recover upon claims for services rendered on April 2, 2008, despite the failure of the plaintiff's assignor to appear for independent medical examinations (IMEs) as requested by the defendant insurance company. The plaintiff argued that the assignor was not required to respond to the IME requests because they came from a third party, but the court disagreed, stating that the scheduling letters clearly apprised the assignor that they were being sent on defendant's behalf. The court ultimately affirmed the judgment dismissing that portion of the complaint, as it found the plaintiff's arguments to be without merit. Therefore, the holding of the case was in favor of the defendant insurance company, as the plaintiff was not entitled to recover upon the claims for services rendered.

Reported in New York Official Reports at W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 52046(U))

W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 52046(U)) [*1]

W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co.

2012 NY Slip Op 52046(U) [37 Misc 3d 133(A)]

Decided on October 18, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
.

W.H.O. Acupuncture, P.C. as Assignee of MAUREEN DEFRAITAS, Appellant, —
against
Kemper Independence Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 23, 2010. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $514.08, $385.56, $471.24, and $85.68 for services rendered on April 2, 2008. The appeal is deemed to be from a judgment of the same court entered November 5, 2010 dismissing that portion of the complaint (see CPLR 5501 [c]).

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $514.08, $385.56, $471.24, and $85.68 for services rendered on April 2, 2008 due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs). A judgment dismissing that portion of the complaint was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff’s argument on appeal that the assignor was not required to respond to the IME requests because they came from a third party lacks merit, as the scheduling letters ” clearly apprised the assignor’ that they were being sent on defendant’s behalf'” (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, 11th & 13th Jud Dists 2012]; Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51057[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As defendant’s remaining contentions are equally devoid of merit, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 18, 2012