July 1, 2022
Citycare Chiropractic, P.C. v Repwest Ins. Co. (2022 NY Slip Op 50619(U))
https://www.beynensonlaw.com/case-law/citycare-chiropractic-p-c-v-repwest-ins-co-2022-ny-slip-op-50619u/
- Decided
- July 1, 2022
- Citation
- 2022 NY Slip Op 50619(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Citycare Chiropractic, P.C. v Repwest Ins. Co. (2022 NY Slip Op 50619(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Repwest Insurance Company, Appellant.
Bryan Cave, LLP (Jennifer M. Jordan of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered November 19, 2019. The order, insofar as appealed from, denied defendant’s motion for partial summary judgment dismissing the second and third causes of action.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for partial summary judgment dismissing the second and third causes of action is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for partial summary judgment dismissing the second and third causes of action on the ground that plaintiff’s assignor had failed to appear at duly scheduled independent medical examinations (IMEs).
In support of its motion, defendant submitted an affidavit by an employee of Empire Stat Medical Review, P.C., which had been retained by defendant to schedule IMEs. This affidavit demonstrated that the IME scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant [*2]also demonstrated that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Therefore, defendant demonstrated, prima facie, that plaintiff had failed to comply with a condition precedent to coverage (see id. at 722). Defendant’s motion further demonstrated that defendant had timely denied the claims on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, as plaintiff’s assignor’s bald conclusory denial of receipt was insufficient to rebut the presumption that the IME scheduling letters were received (see CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]; Tyorkin v Repwest Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Triangle R, Inc. v Tri-State Consumer Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50256[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, defendant was entitled to partial summary judgment dismissing the second and third causes of action.
Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for partial summary judgment dismissing the second and third causes of action is granted.
WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 1, 2022
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.
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
Held the IME scheduler's affidavit proved timely and proper mailing of the scheduling letters, and the assignor's bald conclusory denial of receipt did not rebut the presumption of receipt.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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
Held the insurer proved mailing of the IME letters and the assignor's nonappearance, and the assignor's conclusory denial of receipt raised no triable issue.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the insurer demonstrated that it timely denied the claims on the IME no-show ground, completing its prima facie defense.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- Nationwide Affinity Ins. Co. of Am. v George (2020 NY Slip Op 02801) FollowedThe insurer proved timely EUO notices, two nonappearances by each assignor, and timely denials; the providers raised no factual issue.
- Tyorkin v Repwest Ins. Co. (2021 NY Slip Op 51208(U)) FollowedThe assignor's conclusory denial of receiving IME notices failed to rebut the presumption of receipt arising from proper mailing.
- Triangle R, Inc. v Tri-State Consumer Ins. Co. (2013 NY Slip Op 50256(U)) FollowedThe provider's denial of receipt did not rebut proof of timely mailed verification requests, and its unanswered claims were premature.
Similar decisions
- Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U))An insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue.
- Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51006(U))The insurer established timely mailing of IME notices and the assignor's nonappearance, warranting dismissal of the claim at issue.
- American Chiropractic Care, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51359(U))The insurer failed to establish timely IME scheduling, and the provider failed to establish its prima facie entitlement to payment.
- Total Chiropractic, P.C. v Hereford Ins. Co. (2020 NY Slip Op 51362(U))The provider failed to establish its prima facie case, and the insurer failed to schedule the initial IME within the required 30 days.
- Sufficient Chiropractic Care, P.C. v Global Liberty Ins. Co. (2021 NY Slip Op 50959(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability on the policy.