Opinion
No. 570824/14.
10-20-2015
ACUPUNCTURE PAIN MANAGEMENT, P.C. a/a/o Bryan Pacelli, Plaintiff–Respondent, v. KEMPER CASUALTY INSURANCE COMPANY, Defendant–Appellant.
Opinion
PER CURIAM.
Order (Joseph E. Capella, J.), entered March 10, 2014, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.
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 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 Civil Court's determination, defendant submitted competent evidence of the assignor's nonappearance in the form of the sworn affidavits of the scheduled examining acupuncturist and defendant's third-party IME scheduler setting forth facts sufficient 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 ). Accordingly, when the assignor failed to appear for the requested acupuncture IMEs, defendant had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424), and even though defendant initially denied certain of the claims on different grounds (see Unitrin, 82 AD3d at 560).
In view of our determination, we reach no other issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.