New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. 2012 NY Slip Op 51954(U) Decided on October 16, 2012 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-3203 Q C.

New Way Acupuncture, P.C. as Assignee of DOREEN L. POLANCO, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered October 25, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant's motion seeking summary judgment dismissing the third, fourth, fifth and sixth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant's motion seeking summary judgment dismissing the third, fourth, fifth and sixth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant, insofar as is relevant to this appeal, moved for summary judgment dismissing plaintiff's third, fourth, fifth and sixth causes of action on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied these branches of defendant's motion, finding that the sole issue remaining for trial is whether the assignor had failed to appear for IMEs.

In support of its motion, defendant submitted, among other things, an affidavit of the medical professional who was to perform the scheduled acupuncture/chiropractic IMEs, which established that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff has not cross-appealed from so much of the Civil Court's order limiting the issue for trial to whether the assignor had failed to appear for IMEs (see e.g. Parker v Mobil Oil Corp., 16 AD3d 648 [2005], affd 7 NY3d 434 [2006]), and thus finding, in effect, that defendant is otherwise entitled to judgment with respect to plaintiff's third, fourth, fifth and sixth causes of action, the order is reversed and the branches of defendant's motion seeking summary judgment dismissing these causes of action are granted.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: October 16, 2012