Opinion
350 570015/14.
03-01-2016
ARNICA ACUPUNCTURE P.C. as Assignee of Palmer Marjorie, Plaintiff–Respondent, v. INTERBOARD INSURANCE COMPANY, Defendant–Appellant.
The Law Office Of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant. Law Offices of Melissa Betancourt, P.C., Brooklyn (David M. Landfair of counsel), for respondent.
The Law Office Of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (David M. Landfair of counsel), for respondent.
Opinion
Order of the Appellate Term of the Supreme Court, First Department, entered April 17, 2014, which, to the extent appealed from as limited by the briefs, affirmed the part of an order of the Civil Court, Bronx County (Joseph E. Capella, J.), entered September 5, 2013, denying defendant's motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to produce its principal for deposition, unanimously reversed, on the law, without costs, and defendant's motion for summary judgment granted. The Clerk is directed to enter judgment dismissing the complaint.
Contrary to the Appellate Term's finding, plaintiff's supervising acupuncturist's affidavit failed to raise a triable issue since it was not based on an examination of the patient, nor did it address or rebut the findings of objective medical tests detailed in the sworn report of defendant's medical expert. The insured's subjective complaints of pain cannot overcome objective medical tests (see Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc.3d 156[A], 2015 N.Y. Slip Op. 50900[U], 2015 WL 3767514 [App.Term, 1st Dept.2015]; see generally Munoz v. Hollingsworth, 18 A.D.3d 278, 795 N.Y.S.2d 20 1st Dept.2005 ).
ACOSTA, J.P., RENWICK, ANDRIAS, MOSKOWITZ, JJ., concur.