Amaze Med. Supply Inc. v New York Cent. Mut. Ins. Co. (2004 NY Slip Op 51680(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (D. Waltrous, J.), entered April 11, 2003, denying its motion for summary judgment and granting defendant’s cross motion for summary judgment.

Order modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, affirmed without costs.

In this action to recover the sum of $2,157 in first-party no-fault benefits for medical supplies furnished to plaintiff’s assignor, defendant timely denied plaintiff’s claims upon the ground of lack of medical necessity, and based upon plaintiff’s assignor’s failure to appear for scheduled independent medical examinations (IMEs).

In addition to requesting an IME as a means of verification of a submitted proof of claim (see 11 NYCRR 65.15 [d] [1], now 11 NYCRR 65-3.5), an insurer has an independent right to [*2]request an IME prior to its receipt of a proof of claim, pursuant to the mandatory endorsement provision of the policy of insurance which, as set forth in 11 NYCRR 65.12 (e) (now 11 NYCRR 65-1.1 [d]), provides that “[t]he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the company may reasonably require.” Furthermore, where the insurer has timely asserted in its claim denial form an injured person’s failure to comply with a reasonable and proper IME request made prior to the insurer’s receipt of plaintiff’s proof of claim, and raises said ground in support of, or in opposition to, a summary judgment motion, said assertion may operate to negate the presumption of medical necessity which otherwise attaches to plaintiff’s claim forms (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]).

In the instant case, upon the summary judgment motions, defendant stated that it mailed several IME requests to plaintiff’s assignor prior to its receipt of plaintiff’s proof of claim forms, and that she failed to attend the IMEs which were scheduled. Defendant’s proof of mailing was supported by the affidavits of a manager of defendant and of an employee of Crossland Medical Services (which schedules IMEs for defendant), and was sufficient to demonstrate that defendant followed a standard office practice or procedure designed to ensure that the letters were properly addressed and mailed on the dates claimed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Having demonstrated that it made reasonable and proper IME requests and that plaintiff’s assignor failed to comply with such requests, defendant effectively rebutted the presumption of medical necessity which ordinarily attaches to plaintiff’s claim forms, and raised a triable issue of fact as to the medical necessity of the equipment supplied to plaintiff’s assignor (see Stephen Fogel Psychological, PC v Progressive Casualty Ins. Co., [decided herewith]). Inasmuch as plaintiff neither offered a valid excuse for its assignor’s nonappearance nor demonstrated that the IME requests were unreasonable under the circumstances, a triable issue as to medical necessity was raised and thus, in addition to denying plaintiff’s motion for summary judgment, the court below should have denied defendant’s cross motion for summary judgment.
Aronin, J.P., and Patterson, J., concur.
Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
AMAZE MEDICAL SUPPLY INC.,
As Assignee of ROSE DANIEL,
Appellant,

-against-

Golia, J., concurs in part and dissents in part and votes to affirm the order in the following memorandum:

Although I agree with the findings of my colleagues that defendant’s proof of mailing IME scheduling letters demonstrated that defendant, in conjunction with Crossland Medical Services, adhered to established business practices of proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and that plaintiff failed to come forward with an acceptable excuse for its assignor’s nonattendance, it is my opinion that plaintiff’s failure to have done so warrants the granting of defendant’s cross motion for summary judgment and the substantive
sanction of dismissal, for the reasons set forth in my dissent in the case of Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]).

I note that defendant’s denial of claim form also asserted that the fees charged for the medical equipment were not “in accordance with fee schedules.” Had this issue been raised in the motion papers or on the appeal, I would have, where appropriate, entertained it, notwithstanding my concurrence in the decision of Amaze Med. Supply v Allstate Ins. Co. (3 Misc 3d 43 [2004]).
Decision Date: December 22, 2004