T & J Chiropractic, P.C. v Geico Ins. Co.

[*1] T & J Chiropractic, P.C. v Geico Ins. Co. 2015 NY Slip Op 50772(U) Decided on May 18, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2070 Q C

T & J Chiropractic, P.C. as Assignee of JEANNE BAPTISTE, Appellant,

against

Geico Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d'Auguste, J.), entered August 6, 2012. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff's motion seeking summary judgment on the first, third and fourth causes of action and granted the branches of defendant's cross motion seeking summary judgment dismissing the third and fourth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment on the third and fourth causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff's motion seeking summary judgment on the first, third and fourth causes of action and granted the branches of defendant's cross motion seeking summary judgment dismissing the third and fourth causes of action.

The Civil Court properly denied those branches of plaintiff's motion seeking summary judgment on the first, third and fourth causes of action. While the Civil Court found, in effect, for all purposes in the action (see CPLR 3212 [g]), that plaintiff had submitted the claim forms at issue to defendant and that defendant had not paid these claims within the requisite 30-day period (which findings we do not review on this appeal), the court found neither that defendant had failed to deny these claims or that defendant had issued a legally insufficient denial of claim form with respect to these claims (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), and plaintiff has not made such a showing.

However, the branches of defendant's cross motion seeking summary judgment dismissing the third and fourth causes of action should have been denied. The ground proffered for the dismissal of these causes of action was that defendant had timely and properly denied the claims underlying these causes of action based on plaintiff's assignor's failure to appear for duly scheduled independent medical examinations (IMEs). While defendant submitted properly sworn statements by the chiropractor and doctor who were scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff's assignor for the examinations, and therefore defendant failed to establish its entitlement as a matter of law to the dismissal of these causes of action (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment on the third and fourth causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015