American Kinetics Lab, Inc. v. Warner Ins. Co.

American Kinetics Lab, Inc., as Assignee of Mahamadou Camara, Appellant, against Warner Insurance Company, Respondent. Law Office of Emilia I. Rutigliano, P.C., Marina Josovich, Esq., for appellant. Gullo & Associates, LLC, Natalie Socorro, Esq., for respondent. Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered June 16, 2015. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, finding that defendant established that it had timely denied the claims at issue on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs). Contrary to plaintiff's sole argument on appeal, defendant did not raise an issue of fact as to whether the first scheduled IME had been mutually rescheduled, let alone establish a mutual rescheduling as a matter of law (see generally Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Accordingly, the order is affirmed. Solomon, J.P., Pesce and Elliot, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: March 31, 2017