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IME no-show (First Department)July 22, 2014

Sunrise Acupuncture, P.C. v Encompass Auto & Home Ins. Co., 2014 NY Slip Op 51082(U)(App. Term 1st Dept. 2014)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). With respect to the appearance issue, defendant presented competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of the defendant’s third-party biller attesting to the affiants’ “personal knowledge of the office procedures when a[n] [assignor] failed to appear for a medical exam” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424).”

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