June 13, 2023
Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. (2023 NY Slip Op 03191)
https://www.beynensonlaw.com/case-law/matter-of-american-tr-ins-co-v-smart-choice-med-p-c-2023-ny-slip-op03191/
- Decided
- June 13, 2023
- Citation
- 2023 NY Slip Op 03191 · 217 AD3d 492
- Posture
- Article 75 petition
- Outcome
- Insurer prevailed
- Legal questions
- Court review of arbitration awards · Proof of mailing · No-show defense: insurer's proof (see the maps)
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 Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. (2023 NY Slip Op 03191)
| Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. |
| 2023 NY Slip Op 03191 [217 AD3d 492] |
| June 13, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of American Transit Insurance Company,
Respondent, v Smart Choice Medical, P.C., as Assignor of Jeremy Cruz, Appellant. |
Roman Kravchenko, Melville, for appellant.
Larkin Farrell LLC, New York (Anthony R. Troise of counsel), for respondent.
Order, Supreme Court, Bronx County (Marissa Soto, J.), entered January 27, 2023, which granted petitioner American Transit Insurance Company’s (American Transit) petition to vacate the award of a master arbitrator, dated August 11, 2022, affirming a lower arbitrator’s award, dated May 26, 2022, in favor of respondent Smart Choice Medical P.C. (Smart Choice) in the amount of $1,211.48, vacated the arbitration award, and denied Smart Choice’s request for attorney fees, unanimously affirmed, without costs.
“Where, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason” (Matter of Miller v Elrac, LLC, 170 AD3d 436, 436-437 [1st Dept 2019]; see also Country-Wide Ins. Co. v Zablozki, 257 AD2d 506, 507 [1st Dept 1999], lv denied 93 NY2d 809 [1999]).
“When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it constitutes a breach of a condition precedent vitiating coverage” (Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 442 [1st Dept 2018] [internal quotation marks omitted]). Like Hereford, American Transit established its entitlement to judgment as a matter of law by submitting the letters sent to the claimant notifying him about the date, time, and location of the initially scheduled IME, a second scheduled IME, a third scheduled IME, and an affidavit of mailing for these letters. American Transit also submitted affidavits from the medical professional assigned to conduct the scheduled IMEs, who stated that the claimant failed to appear at the date and time of his appointment. This principle is well-established law in this Court (see e.g. Matter of Global Liberty Ins. Co. of N.Y. v Capital Chiropractic, P.C., 181 AD3d 429, 429 [1st Dept 2020]; Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 175 AD3d 1131, 1131-1132 [1st Dept 2019]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]).
Generally, if a valid claim or portion of a claim for no-fault benefits is overdue, Insurance Law § 5106 (a) entitles “the claimant . . . to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations” (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 172 AD3d 598, 598 [1st Dept 2019]). However, because we find Smart Choice’s claim invalid as a matter of law, it is not entitled to such fees. Concur—Oing, J.P., Singh, Moulton, Scarpulla, Shulman, JJ.
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.
When does a court vacate, modify or confirm a no-fault arbitrator’s or master arbitrator’s award under CPLR article 75?
This decision: Award vacated or modified because it was irrational, arbitrary and capricious, without evidentiary support or contrary to settled law
Affirmed vacatur of the master arbitrator's affirmance because the insurer proved the claimant's IME no-shows, a breach of a condition precedent vitiating coverage under well-established law, making the claim invalid as a matter of law.
Of the 55 decisions on this question in the First Department courts and the Court of Appeals, 13 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the insurer established its IME no-show ground for vacatur by submitting the three IME scheduling letters with an affidavit of mailing, together with the examiner's affidavits of nonappearance.
Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (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 established the IME no-show defense through the three scheduling letters with an affidavit of mailing and the examining professional's affidavits that the claimant failed to appear, so the arbitration award was vacated.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 93 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Matter of Miller v Elrac, LLC (2019 NY Slip Op 01544) FollowedThe denial of no-fault benefits survived arbitration review because the sworn IME report supplied a rational evidentiary basis.
- Hereford Ins. Co. v Lida’s Med. Supply, Inc. (2018 NY Slip Op 03226) FollowedThe insurer's scheduling letters, service affidavits, and medical professionals' affidavits established the claimants' IME nonappearances.
- Matter of Global Liberty Ins. Co. of N.Y. v Capital Chiropractic, P.C. (2020 NY Slip Op 01466)The master arbitrator's award was arbitrary because it ignored precedent treating IME nonappearance as voiding the policy from inception.
- Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc. (2019 NY Slip Op 06445)The master arbitrator's award was arbitrary because it ignored controlling law on the assignor's failure to attend duly scheduled IMEs. Following Hereford Ins. Co. v Lida's Med. Supply, Inc., the policy was void ab initio because of that nonappearance.
- Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C. (2016 NY Slip Op 04156)A master arbitrator's award was irrational because it ignored the coverage effect of the assignor's failure to attend duly scheduled IMEs. The insurer presented authority establishing that the IME nonappearances rendered the no-fault policy void ab initio.
- Matter of Country-Wide Ins. Co. v TC Acupuncture P.C. (2019 NY Slip Op 04087)Attorney fees for judicial review of a master arbitration award are fixed by the court under 11 NYCRR 65-4.10 (j) (4).
Similar decisions
- Matter of American Tr. Ins. Co. v Integrated Medicine of S.I., P.C. (2025 NY Slip Op 06703)The provider's $220 attorney's fee award was upheld because it supplied no sworn work or time statement and requested no hearing.
- Matter of Global Liberty Ins. Co. of N.Y. v Avangard Supply, Inc. (2020 NY Slip Op 06855)An insurer's vague IME-based denial supported a rational arbitration award of no-fault benefits to the providers.
- American Tr. Ins. Co. v Beach Med. Rehabilitation, P.C. (2026 NY Slip Op 03771)The insurer failed to raise a triable issue on timely denials or causation in its action for de novo review of no-fault claims.
- Matter of American Tr. Ins. Co. v Stand Up MRI of Manhattan (2026 NY Slip Op 01353)The provider's $300 attorney fee award was affirmed because it supplied no description of counsel's work or time and requested no hearing.
- Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Ctr., LLC (2026 NY Slip Op 01350)The provider's $280 attorney fee award was affirmed because it supplied no description of counsel's work or time and requested no hearing.