Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co.

[*1] Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co. 2015 NY Slip Op 51522(U) Decided on October 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570824/14

Acupuncture Pain Management, P.C. a/a/o Bryan Pacelli, Plaintiff-Respondent,

against

Kemper Casualty Insurance Company, Defendant-Appellant.

Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered March 10, 2014, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered March 10, 2014, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff's assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to Civil Court's determination, defendant submitted competent evidence of the assignor's nonappearance in the form of the sworn affidavits of the scheduled examining acupuncturist and defendant's third-party IME scheduler setting forth facts sufficient to demonstrate the affiants' personal knowledge of the assignor's repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

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]; see also American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]). Accordingly, when the assignor failed to appear for the requested acupuncture IMEs, defendant had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied certain of the claims on different grounds (see Unitrin, 82 AD3d at 560).

In view of our determination, we reach no other issues.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 20, 2015