ACUPUNCTURE SOLUTIONS, P.C. ET AL, a/a/o BELLANIRIS MATA, plf-res, v. LUMBERMANS MUTUAL CASUALTY COMPANY, def-app

570833/14. ACUPUNCTURE SOLUTIONS, P.C. ET AL, a/a/o BELLANIRIS MATA, plf-res, v. LUMBERMANS MUTUAL CASUALTY 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 (Elizabeth A. Taylor, J.), entered October 15, 2013, reversed, with $10 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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570833/14. ACUPUNCTURE SOLUTIONS, P.C. ET AL, a/a/o BELLANIRIS MATA, plf-res, v. LUMBERMANS MUTUAL CASUALTY 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 (Elizabeth A. Taylor, J.), entered October 15, 2013, reversed, with $10 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 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 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]). Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor and defendant’s third-party IME scheduler setting forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424).

ACUPUNCTURE SOLUTIONS, P.C. ET AL, a/a/o BELLANIRIS MATA, plf-res, v. LUMBERMANS MUTUAL CASUALTY COMPANY, def-app

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