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W.H.O. Acupuncture, P.C. As Assignee of Shane Simmonds v. Travelers Home and Marine Ins. Co

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


August 31, 2012

W.H.O. ACUPUNCTURE, P.C. AS ASSIGNEE OF SHANE SIMMONDS,
APPELLANT, --
v.
TRAVELERS HOME AND MARINE INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered November 15, 2010.

W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co.

Decided on August 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order, insofar as appealed from as limited by the brief, granted defendant's motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered December 16, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered November 15, 2010 as granted the branches of defendant's motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and $171.36, for dates of service August 20, 2008 through August 25, 2008, is vacated, and those branches of defendant's motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court entered November 15, 2010 as granted defendant's motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered December 16, 2010 dismissing the complaint (see CPLR 5501 [c]).

Plaintiff brought this suit to recover upon three claims which defendant had denied based upon the assignor's failure to appear for duly scheduled independent medical examinations (IMEs). Contrary to plaintiff's argument on appeal, defendant established the mailing of the IME scheduling letters, by submitting an affidavit by an employee of the entity which had sent the letters, which affidavit sufficiently demonstrated that the IME scheduling letters had been mailed in accordance with that entity's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Plaintiff's argument that the assignor was not required to respond to those IME requests because they came from a third party lacks merit, as the letters "clearly apprised the assignor" that they "were being sent on defendant's behalf" (Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51057[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2010]). As plaintiff raises no other argument with respect to its claim for $171.36, for dates of service September 3 and 4, 2008, the branch of defendant's motion seeking summary judgment dismissing this claim was properly granted.

However, defendant was not entitled to summary judgment dismissing plaintiff's claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and for $171.36, for dates of service August 20, 2008 through August 25, 2008, because, according to the proof submitted by defendant in support of its motion, the first IME had not been scheduled to be held within 30 days of defendant's receipt of those claims, as required by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d).

Accordingly, the judgment is reversed, so much of the order entered November 15, 2010 as granted the branches of defendant's motion seeking summary judgment dismissing plaintiff's claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and for $171.36, for dates of service August 20, 2008 through August 25, 2008, is vacated, and those branches of defendant's motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: August 31, 2012

20120831

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