Psychology After Acc., P.C. v. New York Cent. Mut. Fire Ins. Co.

Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 51072(U)) [*1] Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co. 2021 NY Slip Op 51072(U) [73 Misc 3d 136(A)] Decided on November 12, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : DAVID ELLIOT, J.P., MICHELLE WESTON, DONNA-MARIE E. GOLIA, JJ 2019-1549 K C Psychology After Accident, P.C., as Assignee of Jean Roosevelt and Villa Jackson, Respondent, against New York Central Mutual Fire Insurance Company, Appellant. Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Rachel Freier, J.), dated July 11, 2019. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted. 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 assignors had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order dated July 11, 2019, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was plaintiff's assignors' failure to appear for the IMEs. As limited by its brief, defendant appeals from so much of the order as denied its motion. The proof submitted by defendant was sufficient to demonstrate that plaintiff's assignors had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; cf. Satya Drug Corp. v Global Liberty Ins. Co. of NY, 65 Misc 3d [*2]127[A], 2019 NY Slip Op 51505[U] [App Term, 1st Dept 2019]), which showing plaintiff failed to rebut. In view of the foregoing, and as plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted. ELLIOT, J.P., WESTON and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 12, 2021