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Vega Chiropractic, P.C. As Assignee of Nau Marcel v. Kemper Independence Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 19, 2011

VEGA CHIROPRACTIC, P.C. AS ASSIGNEE OF NAU MARCEL,
APPELLANT,
v.
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 March 3, 2010.

Vega Chiropractic, P.C. v Kemper Independence Ins. Co.

Decided on December 19, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: RIOS, J.P., WESTON and GOLIA, JJ

The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by striking so much of the order as granted the branches of defendant's motion for summary judgment seeking to dismiss plaintiff's $155.84 claim for services rendered September 18, 2007 through September 27, 2007 and plaintiff's $134.80 claim for services rendered October 2, 2007 through October 11, 2007; as so modified, the order, insofar as appealed from, is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of the aforesaid branches of defendant's motion in accordance with the decision herein.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court as granted defendant's motion for summary judgment dismissing the complaint.

We note, at the outset, that defendant denied all of the claims, except for claims in the sums of $155.84 and $134.80 for services rendered September 18, 2007 through October 11, 2007, on the ground that plaintiff's assignor had failed to appear at any of three independent medical examinations (IMEs). The Civil Court found that defendant's motion papers established the assignor's failure to appear for the IMEs and granted defendant's motion for summary judgment dismissing the complaint. Plaintiff contends on appeal that the scheduling of the examinations was unreasonable. However, since plaintiff failed to submit sufficient evidence to raise an issue of fact as to the reasonableness of the scheduling of the IMEs, we leave undisturbed so much of the order as granted defendant summary judgment dismissing the complaint with respect to all of the claims, other than the claims for $155.84 and $134.80 (see e.g. All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

With respect to plaintiff's claims for $155.84 and $134.80, defendant, in its brief, in effect concedes that it is not entitled to summary judgment dismissing these claims on the ground relied upon by the Civil Court. Defendant requests that these claims be "returned to the lower court for a determination as to the merits of defendant's summary judgment motion" based upon the grounds set forth in its motion papers. As the record indicates that the Civil Court apparently did not consider the grounds upon which defendant sought summary judgment with respect to the claims for $155.84 and $134.80, so much of the Civil Court's order as granted the branches of defendant's motion for summary judgment seeking to dismiss these claims is stricken, and the matter is remitted to the Civil Court for a new determination with respect to these two claims.

Rios, J.P., Weston and Golia, JJ., concur.

Decision Date: December 19, 2011

20111219

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