RIVER ACUPUNCTURE, P.C., A/A/O RADHAMES SANTOS, plfres, v. PRAETORIAN INSURANCE COMPANY, def-app

570737/14. RIVER ACUPUNCTURE, P.C., A/A/O RADHAMES SANTOS, plfres, v. PRAETORIAN INSURANCE COMPANY, def-app — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order — Order (Donald A. Miles, J.), entered January 9, 2014, insofar as appealed from, reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

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570737/14. RIVER ACUPUNCTURE, P.C., A/A/O RADHAMES SANTOS, plfres, v. PRAETORIAN INSURANCE COMPANY, def-app — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order — Order (Donald A. Miles, J.), entered January 9, 2014, insofar as appealed from, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim 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 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]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff's] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v. Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).

RIVER ACUPUNCTURE, P.C., A/A/O RADHAMES SANTOS, plfres, v. PRAETORIAN INSURANCE COMPANY, def-app

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