Karina K. Acupuncture, P.C. v Hartford Ins. Co.

[*1] Karina K. Acupuncture, P.C. v Hartford Ins. Co. 2016 NY Slip Op 51382(U) Decided on September 28, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Gonzalez, J.
570376/16

Karina K. Acupuncture, P.C., a/a/o Dwight Hall, Plaintiff-Appellant,

against

The Hartford Insurance Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), dated August 18, 2015, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Per Curiam.

Order (Alexander M. Tisch, J.), August 18, 2015, affirmed, with $10 costs.

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]). Defendant submitted competent evidence of the assignor's nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of defendant's third-party IME scheduler, setting forth sufficient facts 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]).

We have considered plaintiff's remaining arguments and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: September 28, 2016