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

Full title: IMA Acupuncture, P.C. as Assignee of ELISKA DUPUY, Respondent, - v…

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

Date published: Nov 9, 2015

2015 N.Y. Slip Op. 51633 (N.Y. App. Term 2015)

28 N.Y.S.3d 648

Opinion

2013-1153 Q C

11-09-2015

IMA Acupuncture, P.C. as Assignee of ELISKA DUPUY, Respondent, - v. Praetorian Insurance Company, Appellant.

PESCE, P.J., ALIOTTA and SOLOMON, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 22, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

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 on the ground that it had timely and properly denied the claims at issue based upon plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs). By order entered April 22, 2013, insofar as appealed from and as limited by the brief, the Civil Court denied defendant's cross motion and held that the sole issue for trial was whether plaintiff's assignor had failed to appear for duly scheduled IMEs (see CPLR 3212 [g]).

While defendant submitted a sworn statement by the chiropractor who had been scheduled to perform the IMEs, the chiropractor failed to demonstrate by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), the nonappearance of plaintiff's assignor for both of the IMEs. Therefore, defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 09, 2015