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Eastern Star Acupuncture, P.C. As Assignee of Jose Gil v. American Transit Insurance Company

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


January 14, 2013

EASTERN STAR ACUPUNCTURE, P.C. AS ASSIGNEE OF JOSE GIL,
RESPONDENT,
v.
AMERICAN TRANSIT INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), dated October 29, 2009.

Eastern Star Acupuncture, P.C. v American Tr. Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2013

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

The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of plaintiff's motion seeking summary judgment with respect to so much of the complaint as sought to recover upon a claim for $612.59, and a claim for $167.07 for services rendered September 8, 2006 through September 19, 2006, are denied and the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff's prima facie case upon the five claims for which plaintiff was awarded summary judgment, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

The affidavits submitted by defendant established that plaintiff's claims for $612.59, $167.07 (for services rendered on August 15, 2006) and $167.07 (for services rendered September 8, 2006 through September 19, 2006) had been timely denied (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]) on the ground that the assignor had failed to appear at independent medical examinations (IMEs).

Defendant established its prima facie entitlement to summary judgment dismissing so much of the complaint as sought to recover upon claims in the amount of $612.59 and $167.07 (for services rendered September 8, 2006 through September 19, 2006). Defendant submitted an affidavit which established that the IME scheduling letters had been timely mailed to the assignor by Independent Physical Exam Referrals in accordance with its standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affirmation by the physician who was to perform the IMEs, which stated that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to rebut defendant's prima facie showing, defendant is entitled to summary judgment upon these claims.

However, with respect to the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff's $167.07 claim for services rendered on August 15, 2006, defendant failed to submit an affidavit from someone with personal knowledge to establish that plaintiff's assignor had failed to appear for scheduled IMEs on July 27, 2006 and August 10, 2006 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also South Nassau Orthopedic Surgery v Auto One Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As a result, we do not disturb so much of the order as awarded plaintiff summary judgment with respect to this claim.

Since defendant also failed to establish that it had timely denied plaintiff's $668.28 claim (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), we do not disturb so much of the order as awarded plaintiff summary judgment with respect to this claim. Lastly, in light of defendant's concession that it did not timely deny plaintiff's $222.76 claim, we find no basis to disturb so much of the order as awarded plaintiff summary judgment with respect to this claim.

Accordingly, the order is modified by providing that the branches of plaintiff's motion seeking summary judgment with respect to so much of the complaint as sought to recover upon a claim for $612.59, and a claim for $167.07 for services rendered September 8, 2006 through September 19, 2006, are denied and the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims are granted.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: January 14, 2013

20130114

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