Acupuncture Choice, P.C. v. American Tr. Ins. Co.

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. The Law Office of Jason Tenenbaum, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 30, 2015. The order, insofar as appealed from and as limited by the brief, denied plaintiff's cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered January 30, 2015, the Civil Court denied defendant's motion and plaintiff's cross motion, but held that the only issues for trial were whether defendant's IME scheduling letters had been properly "generated" and whether plaintiff's assignor had failed to appear for the IMEs. Plaintiff appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment.

As the record contains denial of claims forms which timely denied plaintiff's claims on the ground that plaintiff's assignor did not appear for scheduled IMEs, and plaintiff failed to establish that its assignor had appeared for the IMEs or that the denials lacked merit as a matter of law, plaintiff failed to establish its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v [*2]Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.