Urban Well Acupuncture, P.C. v. Nationwide Gen. Ins. Co.

Full title: Urban Well Acupuncture, P.C., a/a/o Anthony Espinal, Plaintiff-Appellant…

Court: SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Date published: Jun 15, 2016

2016 N.Y. Slip Op. 50906 (N.Y. App. Term 2016)

38 N.Y.S.3d 833

Opinion

570009/16

06-15-2016

Urban Well Acupuncture, P.C., a/a/o Anthony Espinal, Plaintiff-Appellant, v. Nationwide General Ins. Co., Defendant-Respondent.

Per Curiam.

PRESENT: Hunter, Jr., J.P, Schoenfeld, Shulman, JJ.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered October 1, 2012, which granted defendant's motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Frank P. Nervo, J.), entered October 1, 2012, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor and the assignor's attorney, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to plaintiff's contention, defendant submitted competent evidence of the assignor's nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and an employee of defendant's third-party IME scheduler, setting forth sufficient facts to demonstrate the affiants' personal knowledge of the assignor's repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

In opposition, plaintiff did not specifically deny the assignor's nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; see also American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]).

In view of our determination, we reach no other issues.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: June 15, 2016