Healthy Way Acupuncture, P.C. v. Clarendon Natl. Ins. Co.

Appellate Terms of the Supreme Court of New York

Healthy Way Acupuncture, P.C. v. Clarendon Natl. Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedSeptember 28, 2016

Docket2016 NYSlipOp 51381(U)

StatusPublished

This text of Healthy Way Acupuncture, P.C. v. Clarendon Natl. Ins. Co. (Healthy Way Acupuncture, P.C. v. Clarendon Natl. Ins. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Healthy Way Acupuncture, P.C. v. Clarendon Natl. Ins. Co., (N.Y. Ct. App. 2016).

Pincite

Opinion

Healthy Way Acupuncture, P.C. a/a/o Jorge Tejeda, Plaintiff-Appellant,

against

Clarendon National Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered March 4, 2015, which granted defendant's motion for summary judgment.

Per Curiam.

Order (Alexander M. Tisch, J.), entered March 4, 2015, reversed, with $10 costs, and defendant's motion denied.

Defendant-insurer's motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor's nonappearance at scheduled independent medical examinations (IME) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant's IME doctors lacked probative value, since they failed to state the basis of their recollection, some 8 years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: September 28, 2016

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Healthy Way Acupuncture, P.C. a/a/o Jorge Tejeda, Plaintiff-Appellant,

against

Clarendon National Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered March 4, 2015, which granted defendant's motion for summary judgment.

Per Curiam.

Order (Alexander M. Tisch, J.), entered March 4, 2015, reversed, with $10 costs, and defendant's motion denied.

Defendant-insurer's motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor's nonappearance at scheduled independent medical examinations (IME) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant's IME doctors lacked probative value, since they failed to state the basis of their recollection, some 8 years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: September 28, 2016

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