Opinion
No. 570261/14.
03-23-2015
V.S. CARE ACUPUNCTURE PC a/a/o Jose Olivera, Plaintiff–Respondent, v. MVAIC, Defendant–Appellant.
Opinion
Order (Andrea Masley, J.) dated January 28, 2013, insofar as appealed from, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant MVAIC made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff's first-party no-fault claims based on a sworn independent medical examination (IME) report of its examining acupuncturist, which set forth a factual basis and medical rationale for his stated conclusion that the assignor's injuries were resolved and that there was no need for further acupuncture treatment (see Utica Acupuncture, P.C. v. Interboro Ins. Co., 39 Misc.3d 139[A], 2013 N.Y. Slip Op 50643[U] [App Term, 1st Dept 2013] ). Contrary to the conclusion reached below, defendant was not required to provide notice of the scheduled IME to plaintiff provider (see 11 NYCRR 65–1.1 ; 65–3.5 [b],[c]; 65–3.6[b]; BR Clinton Chiropractic, P.C. v. New York Cent. Mut. Fire Ins. Co., 43 Misc.3d 134[A], 2014 N.Y. Slip Op 50632[U] [App Term, 2nd 11th and 13th Jud Dists 2014), and the court therefore erred in declining to consider the report on this ground.
Plaintiff's opposition consisting of an attorney's affirmation-unaccompanied by any medical evidence or other competent proof-was insufficient to raise a triable issue (see Munoz v. Hollingsworth, 18 AD3d 278, 279 [2005] ; CPT Med. Servs., P.C. v. New York Cent. Mut. Fire Ins. Co., 18 Misc.3d 87 [2007] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.