Raymond Semente, D.C., P.C. v Mercury Cas. Co.

[*1] Raymond Semente, D.C., P.C. v Mercury Cas. Co. 2016 NY Slip Op 50861(U) Decided on June 3, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1573 Q C

Raymond Semente, D.C., P.C., as Assignee of FRANK ZIGON, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County

(Barry A. Schwartz, J.), entered July 2, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant's motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial. The Civil Court denied defendant's motion, but, in effect, limited the issues for trial, pursuant to CPLR 3212 (g), stating that "[t]he only issue for trial shall be the defense of lack of medical necessity." Defendant appeals from so much of the order as denied its motion for summary judgment or, in the alternative, to compel plaintiff to appear for an examination before trial.

In support of its motion, defendant submitted a sworn statement by the chiropractor who had performed an independent medical examination (IME), which set forth a factual basis and medical rationale for the chiropractor's conclusion that there was a lack of medical necessity for further treatment. In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint. In opposition to defendant's motion, plaintiff submitted an affidavit which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and the branch of defendant's motion seeking summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op [*2]52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 03, 2016