February 15, 2022
American Tr. Ins. Co. v Martinez (2022 NY Slip Op 00963)
https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-martinez-2022-ny-slip-op-00963/
- Decided
- February 15, 2022
- Citation
- 2022 NY Slip Op 00963 · 202 AD3d 526
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- 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 American Tr. Ins. Co. v Martinez (2022 NY Slip Op 00963)
| American Tr. Ins. Co. v Martinez |
| 2022 NY Slip Op 00963 [202 AD3d 526] |
| February 15, 2022 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| American Transit Insurance Company,
Respondent, v Moises Martinez et al., Defendants, and Burke Physical Therapy PC et al., Appellants. American Transit Insurance Company, Respondent, v Saleema Watson Bey et al., Defendants, and Longevity Medical Supply Inc et al., Appellants. |
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 11, 2020, in index No. 656140/18, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay any claims from defendants Burke Physical Therapy, P.C., Columbus Imaging Center, LLC, Metro Pain Specialists, P.C., and Right Aid Medical Supply Corp. in connection with a May 22, 2018 accident, unanimously reversed, on the law, without costs, and the motion denied.
Order, same court and Justice, entered on or about October 6, 2020, in index No. 656207/18, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay any claims from defendants Longevity Medical Supply, Inc., Sanford Chiropractic, P.C., and Verebrae Chiropractic Care, P.C. in connection with an accident that occurred on June 11, 2018, unanimously reversed, on the law, without costs, and the motion denied.
The failure to appear for a properly scheduled independent medical examination (IME) requested by the insurer “when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy” and vitiates coverage ab initio (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [internal quotations marks, brackets, and citation omitted]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an IME, the insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear (American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841-842 [1st Dept 2015]). Because it is impossible to discern from the record in each case here whether plaintiff complied with the requisite time frames requiring it to request IMEs within 15 days of receiving appellants’ claims and scheduling the IMEs for within 30 days of receiving their claims (11 NYCRR 65-3.5 [b], [d]), plaintiff failed to establish its prima facie entitlement to summary judgment (Longevity Med. Supply, 131 AD3d at 841-842; see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]). Concur—Kern, J.P., Oing, Singh, Moulton, González, JJ.
Legal questions
A question 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 the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements
Held the insurer failed to make its prima facie case in both actions because the record did not show that it requested and scheduled the IMEs within the 15-day and 30-day time frames after receiving the claims.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
- American Tr. Ins. Co. v Longevity Med. Supply, Inc. (2015 NY Slip Op 06761) FollowedAn insurer seeking summary judgment on an IME no-show must prove compliance with the 30-day period in 11 NYCRR 65-3.5 (d).
- Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916) FollowedThe insurer failed to establish whether its EUO notices were subject to regulatory deadlines or complied with applicable deadlines.
Cited by
A label shows how the later decision treated this one.
- American Tr. Ins. Co. v Melendez (2022 NY Slip Op 02356) FollowedThe insurer failed to establish timely IME scheduling because it supplied no evidence of when it received the providers' claims.
Similar decisions
- American Tr. Ins. Co. v Acosta (2022 NY Slip Op 01097)The insurer failed to establish compliance with IME scheduling deadlines, defeating summary judgment based on nonappearance.
- American Tr. Ins. Co. v Alcantara (2022 NY Slip Op 01871)The insurer failed to prove timely IME requests because its papers did not establish when it received the providers' verification forms.
- Hereford Ins. Co. v Lida’s Med. Supply, Inc. (2018 NY Slip Op 03226)The insurer's scheduling letters, service affidavits, and medical professionals' affidavits established the claimants' IME nonappearances.
- American Tr. Ins. Co. v Marte-Rosario (2013 NY Slip Op 07416)The insurer's proof of IME notice mailing and the assignor's nonappearance established entitlement to a declaration of no coverage.
- Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am. (2016 NY Slip Op 50339(U))The insurer failed to establish IME nonappearance through affidavits that did not explain the doctors' recollections a year later.