30-days to hold the IME from the receipt of the billingNovember 4, 2017

Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co., 2017 NY Slip Op 51461(U)(App. Term 2d Dept. 2017)

“Contrary to defendant’s argument, the Civil Court properly granted the branches of plaintiff’s motion seeking summary judgment on the first two causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that the first independent medical examination had not been scheduled to be held within 30 days of defendant’s receipt of the claims underlying those causes of action, as required by 11 NYCRR 65-3.5 (d) (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, 2d, 11th & 13th Jud Dists 2012]; see also O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”

This is settled law, not necessarily blog worthy.  But, this is a holding that the Appellate Division, First Department and this Court share.  Why not cite the 2 cases from the Appellate Division on this topic?  Precedent from the Appellate Division, First Department, if not contradictory to precedent from the Appellate Division, Second Department is more binding on the Appellate Term, Second Department than that Court’s own holdings.


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