Am. Transit Ins. Co. v. Clark

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for appellant. The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 7, 2014, to the extent appealed from as limited by the briefs, which granted plaintiff's motion for summary judgment against defendant Sky Acupuncture, P.C., and declared that defendant Sky Acupuncture, P.C. is not entitled to no-fault insurance coverage for the subject motor vehicle accident, unanimously reversed, on the law, without costs, and the declaration vacated.

Plaintiff failed to establish prima facie that it was entitled to deny defendant Sky Acupuncture's claim because Sky's assignor, defendant Clark, did not appear for independent medical examinations (IMEs) ( see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 [1st Dept.2011], lv. denied 17 N.Y.3d 705, 2011 WL 2535157 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No–Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v. Perez, 112 A.D.3d 483, 976 N.Y.S.2d 378 [1st Dept.2013] ). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Clark did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65–3.5(d), which prescribes a 30–calendar–day time frame for the holding of IMEs ( see W. H.O. Acupuncture, P.C. v. Travelers Home & Mar. Ins. Co., 36 Misc.3d 152[A], 2012 N.Y. Slip Op. 51707[U], 2012 WL 3887524 [App.Term, 2d Dept.2012]; American Tr. Ins. Co. v. Jorge, 2014 N.Y. Slip Op. 30720[U], 2014 WL 1262582 [Sup.Ct., N.Y. County 2014] ).

GONZALEZ, P.J., ACOSTA, MOSKOWITZ, RICHTER, FEINMAN, JJ., concur.