| Easy Care Acupuncture P.C. v Praetorian Ins. Co. |
| 2015 NY Slip Op 51524(U) [49 Misc 3d 137(A)] |
| Decided on October 20, 2015 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from an order the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered February 11, 2015, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Jose A. Padilla, Jr., J.), entered February 11, 2015, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it properly mailed the notices for chiropractic/acupuncture independent medical examinations (IMEs) to plaintiff's assignor and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to plaintiff's specific contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff's claim forms (see 11 NYCRR 65-1.1 [an insurer has a right to request IMEs "when, and as often as [it] may reasonably require"]; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006] [an insurer is entitled to request IMEs "before . . . or after the claim form is submitted" (emphasis supplied)]; see also Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Moreover, defendant submitted competent evidence of the assignor's nonappearance, in the form of the sworn affidavits of the scheduled examining chiropractors/ acupuncturists and an employee of defendant's third-party IME scheduler, setting forth facts sufficient to demonstrate the affiants' personal knowledge of the assignor's repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).
In opposition to defendant's prima facie showing, plaintiff did not specifically deny the assignor's nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; see also Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]; Abuhamra v New York Mut. [*2]Underwriters, 170 AD2d 1003 [1991]).
In view of our determination, we reach no other issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.