Harmonic Physical Therapy v Encompass Home & Auto Ins. Co.

[*1] Harmonic Physical Therapy v Encompass Home & Auto Ins. Co. 2015 NY Slip Op 50733(U) Decided on May 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570855/14

Harmonic Physical Therapy, a/a/o Shamel Campbell, Plaintiff-Respondent,

against

Encompass Home and Auto Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered November 14, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Appeal from order (Gerald Lebovits, J.), entered November 14, 2013, deemed, pursuant to CPLR 5517(b), to be taken from the subsequent order (same court and Judge), entered July 17, 2014, which, upon reargument, adhered to the original determination denying defendant's motion for summary judgment dismissing the complaint, and so considered, order reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing this action seeking recovery of first-party no-fault benefits by submitting evidence establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor and his counsel, and that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]).

Contrary to the motion court's conclusion, defendant submitted competent evidence of the assignor's nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant's third-party IME scheduler attesting to the affiants' personal knowledge of their office practices and policies in situations where an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424). Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]), relied upon by the motion court, does not warrant a contrary result, since in that case the affiant did not demonstrate personal knowledge of the law firms's practices and procedures in establishing appearances at scheduled examinations under oath (compare 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]; accord [*2]Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]).

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]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 18, 2015