Chi Acupuncture, P.C. v. Kemper Auto & Home Insurance, 14 Misc 3d 141(A) (App. Term. 2d)

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OUTCOME: Denial of defendant's SJ motion affirmed

To be clear, while I argued this case before the Appellate Term, I did not write the underlying brief. My argument was that Summary Judgment was properly denied, in any event, because Defendant fail ... ed to prove the actual no-show which was central to their no-show defense. That issue was not briefed by either side, because it wasn't relevant at the time considering the Fogel II decision had not come out yet. As plaintiff's we had the law on our side at the time. It's particularly interesting because, the decision appealed from had nothing to do with whether or not defendant could prove a no-show Here is the actual decision: Order affirmed without costs. In this action to recover first-party no-fault benefits for health care services rendered by plaintiff to its assignor, defendant insurer moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for independent medical examinations (IMEs) which had been scheduled prior to defendant's receipt of the claim forms. In support of the motion, it submitted, inter alia, copies of plaintiff's three proofs of claim, copies of its claim denial forms, an affidavit of its no-fault claims examiner (which was sufficient to establish both defendant's receipt of the claims and the mailing of the claim denials) and an affidavit of an employee of Alternative Consulting and Examinations, the company which scheduled the IMEs (which was sufficient to establish mailing of the IME scheduling letters to the assignor). The court denied defendant's motion for summary judgment, finding that there was a triable issue of fact as to medical necessity, and this appeal ensued. In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]), the Appellate Division, Second Department, held that when an insurer moves for summary judgment to dismiss an action based upon an assignor's failure to appear for IMEs which were requested prior to the submission of the claim forms, it must "establish, prima facie, that it mailed the notices of the IMEs . . . and that . . . [plaintiff's assignor] failed to appear for the IMEs." In that case, the insurer failed to meet its burden of proof in admissible form because it submitted no evidence from anyone with personal [*2]knowledge of the mailings or of the nonappearances. While defendant herein established proper mailing of the IME requests, it did not submit evidence in admissible form from anyone with personal knowledge of the nonappearances. Since defendant failed to meet its burden, its motion for summary judgment was properly denied. Rudolph, P.J., McCabe and Lippman, JJ., concur. Decision Date: February 14, 2007