V.S. Care Acupuncture PC v MVAIC

[*1] V.S. Care Acupuncture PC v MVAIC 2015 NY Slip Op 50350(U) Decided on March 23, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 23, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570261/14

V.S. Care Acupuncture PC a/a/o Jose Olivera, Plaintiff-Respondent, -

against

MVAIC, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.) dated January 28, 2013, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

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 NY 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 NY 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 I concur I concur
Decision Date: March 23, 2015