| American Tr. Ins. Co. v Vance |
| 2015 NY Slip Op 06762 |
| Decided on September 15, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 15, 2015
Friedman, J.P., Acosta, Moskowitz, Richter, Kapnick, JJ.
14735 150498/12
v
Shateahah Vance, et al., Defendants, KHL Acupuncture, P.C., Defendant-Appellant.
Law Offices of Melissa Betancourt, P.C., New York (Melissa Betancourt of counsel), for appellant.
The Law Office of Jason Tennenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered January 2, 2014, which, to the extent appealed from, granted plaintiff's motion for summary judgment on its complaint against defendant KHL Acupuncture, P.C. (KHL), and declared that KHL is not entitled to receive no-fault benefits from plaintiff, reversed, on the law, without costs, the motion denied, and the declaration vacated.
Plaintiff failed to establish prima facie that it was entitled to deny KHL's claim because KHL's assignor, defendant Shateahah Vance, did not appear for independent medical examinations (IMEs)(see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [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 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Vance 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 NY Slip Op 51707[U] [App Term, 2d Dept 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]). For the reasons set forth in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (Appeal No. 14682, AD3d [1st Dept 2015] [decided simultaneously herewith]), we disagree with the dissent's view that this issue should not be reviewed because it was raised for the first time on appeal.
All concur except Friedman J.P. who dissents in a memorandum as follows:FRIEDMAN, J.P. (dissenting)
I respectfully dissent from the reversal of the grant of summary judgment to plaintiff in this case for substantially the same reason I dissent from the affirmance of the denial of summary judgment to the same plaintiff in American Trans. Ins. Co. v Longevity Med. Supply, Inc. (Appeal No. 14682, AD3d —- [1st Dept 2015] [decided simultaneously herewith]). Here, as in Longevity, defendant medical vendor raised the issue of whether the IMEs were scheduled to be held within the 30-day time frame prescribed by Insurance Department Regulations (11 NYCRR) § 65-3.5(d) for the first time on appeal. Had the issue been raised before the motion court, plaintiff may well have been able to establish that the IMEs had been scheduled in compliance [*2]with the regulation. Moreover, in this case, it seems unfair to reverse the motion court's granting of summary judgment to plaintiff based on an issue that was not raised in defendant's opposition to the motion.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
CLERK