W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co.

[*1] W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co. 2012 NY Slip Op 52046(U) Decided on October 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
.

W.H.O. Acupuncture, P.C. as Assignee of MAUREEN DEFRAITAS, Appellant,

against

Kemper Independence Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 23, 2010. The order, insofar as appealed from, granted the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $514.08, $385.56, $471.24, and $85.68 for services rendered on April 2, 2008. The appeal is deemed to be from a judgment of the same court entered November 5, 2010 dismissing that portion of the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $514.08, $385.56, $471.24, and $85.68 for services rendered on April 2, 2008 due to the failure of plaintiff's assignor to appear for independent medical examinations (IMEs). A judgment dismissing that portion of the complaint was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff's argument on appeal that the assignor was not required to respond to the IME requests because they came from a third party lacks merit, as the scheduling letters " clearly apprised the assignor' that they were being sent on defendant's behalf'" (W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51057[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As defendant's remaining contentions are equally devoid of merit, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 18, 2012