February 2, 2005
Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 50110(U))
https://www.beynensonlaw.com/case-law/triboro-chiropractic-v-new-york-cent-mut-fire-ins-co-2005-ny-slip-op-50110u/
- Decided
- February 2, 2005
- Citation
- 2005 NY Slip Op 50110(U)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Contrasted (cf., but see) in 2 and followed in 1 later decisions (see Cited by)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 50110(U))
| Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co. |
| 2005 NY Slip Op 50110(U) |
| Decided on February 2, 2005 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2003-1652 Q C
against
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.
Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered September 26, 2003, granting plaintiff’s motion for partial summary judgment to the extent of striking defendant’s first affirmative defense, and implicitly denying defendant’s cross motion for summary judgment.
Order modified by providing that plaintiff’s motion is granted to the extent of awarding it partial summary judgment in the sum of $398.68 and matter remanded to the court below for a calculation of statutory interest and attorney’s fees thereon, and for all other proceedings on the remaining claims; as so modified, affirmed without costs.
In this action to recover $8,205.98 in assigned first-party no-fault benefits, the court below granted plaintiff partial summary judgment, to the extent of “preclud[ing]”
defendant “from defending its denials” based on the assignor’s failure to appear for two independent medical examinations (IMEs) scheduled prior to plaintiff’s submission of the first of its statutory claim forms and, implicitly, denied defendant’s cross motion for summary judgment based on the nonappearances. However, defendant’s denials of plaintiff’s claims for $151.28, $67.40 and $180.00 in no-fault benefits were untimely (Insurance Law § 5106[a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and as defendant interposed no defense that survived the preclusive effect of the untimely denials, summary judgment should have been granted as to those claims. We note that said untimely denials precludes the defense that the benefits claimed exceeded the maximum benefits provided by the Workers’ Compensation Law (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d [*2]583, 586 [2002]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]; Mingmen Acupuncture Servs. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40244 [U] [App Term, 9th & 10th Jud Dists]).
However, for the reasons set forth in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]), the failure of plaintiff’s assignor to attend the IMEs, sought before plaintiff submitted its statutory proofs of claim, does not afford the insurer a defense to the action but rebuts the presumption of medical necessity that attaches to the claim forms (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Because plaintiff failed to support its motion with a reasonable excuse for the assignor’s failure to attend or with a showing that the IME requests were unreasonable, or in the alternative, with proof of the treatments’ medical necessity independent of the claims forms, defendant’s proof of the assignor’s nonappearance defeated plaintiff’s summary judgment motion with the exception of the claims that were untimely denied.
Accordingly, the order is modified to grant plaintiff partial summary judgment in the sum of $398.68, and the matter remanded for the calculation of statutory interest
and attorney’s fees thereon, pursuant to Insurance Law § 5106 (a), and for all further proceedings on the remainder of the claims in accordance with the determination herein.
Pesce, P.J., and Rios, J., concur.
Golia, J., dissents in a separate memorandum.
Golia, J. dissents and votes to deny plaintiff’s motion for partial summary judgment and to grant defendant’s cross motion for summary judgment set forth in the following memorandum:
While I agree with the majority’s grant of summary judgment with respect to the claims untimely denied, defendant’s cross motion for summary judgment should have been granted and the complaint dismissed as to the remaining claims for the reasons set forth in my dissent in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (__ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]).
Decision Date: February 02, 2005
Legal questions (3)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the claims untimely denied payable despite the assignor's IME nonappearance because no defense survived the preclusive effect of the untimely denials.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected (rules on the question, but another ground decided the case)
Held the insurer's proof of the assignor's nonappearance at pre-claim IMEs, unanswered by any excuse or showing the requests were unreasonable, defeated the provider's motion on the timely denied claims, though it rebutted only medical necessity rather than being a defense.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's proof was enough to defeat the provider's motion but not to win (rules on the question, but another ground decided the case)
Held the pre-claim IME nonappearance rebutted the presumption of medical necessity, defeating the provider's motion on the timely denied claims absent independent proof of necessity.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Abraham v Country-Wide Ins. Co. (2004 NY Slip Op 50388(U))The insurer's unsworn nurses' reviews failed to raise a triable issue of medical necessity because the reviewers' qualifications were not shown.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2004 NY Slip Op 24527) FollowedA proven failure to attend a reasonably requested preclaim IME, timely raised in a denial, does not alone warrant dismissal.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U)) FollowedA provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
Cited by
A label shows how the later decision treated this one.
- S&M Supply Inc. v Progressive Ins. Co. (2005 NYSlipOp 51312(U)) Contrasted (cf., but see)The insurer's excessive-charge defenses failed because one denial was untimely and the other lacked admissible proof or a valid regulatory basis.
- Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51438(U)) Contrasted (cf., but see)The insurer failed to prove timely mailing of its denial and was precluded from asserting its excessive-charge defense.
- Ultra Diagnostics Imaging v Liberty Mut. Ins. Co. (2005 NY Slip Op 25402) FollowedThe insurer's wage-verification fraud allegations failed to establish a lack-of-coverage defense exempt from untimely-denial preclusion.
- Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U))The insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests.
- A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2006 NY Slip Op 50504(U))The providers obtained partial summary judgment because denials were untimely or defenses lacked evidentiary support.
- Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50582(U))The insurer failed to establish an EUO-authorizing policy endorsement or proper EUO notices, leaving its denial untimely.
- Struhl v Progressive Cas. Ins. Co. (2005 NYSlipOp 50864(U))The insurer's admissible peer review raised a triable coverage issue despite its untimely denial and failure to prove verification tolling.
Similar decisions
- Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50856(U))The provider obtained partial summary judgment on three untimely denied claims; timely fee schedule denials raised triable issues on the rest.
- Triboro Chiropractic & Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51175(U))The provider lacked admissible billing proof, while the insurer failed to establish its IME nonappearance and fee-schedule defenses.
- Triboro Chiropractic & Acupuncture P.L.L.C v Allstate Ins. Co. (2006 NY Slip Op 51740(U))The insurer failed to support its concurrent-care fee defense or prove mailing of the pre-claim IME scheduling letters.
- Tri-Mount Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50335(U))The insurer proved mailing of IME notices and timely denials and the assignor's nonappearance; the provider raised no triable issue.
- Triboro Chiropractic & Acupuncture P.L.L.C. v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50905(U))The insurer's letters announcing delayed bills did not request verification or toll its time to pay or deny the provider's claims.