November 12, 2021

Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 51072(U))

https://www.beynensonlaw.com/case-law/psychology-after-acc-p-c-v-new-york-cent-mut-fire-ins-co-2021-ny-slip-op51072u/

Court: Appellate Term, Second Department
Decided: November 12, 2021
Citation: 2021 NY Slip Op 51072(U) · 73 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co., 73 Misc 3d 136(A), 2021 NY Slip Op 51072(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer established the assignors' IME nonappearances, and the provider failed to rebut that showing. In the provider's action for assigned no-fault benefits, the Civil Court denied both sides' summary judgment motions but found, in effect under CPLR 3212 (g), that nonappearance was the only issue remaining for trial. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, found the insurer's nonappearance proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. It reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 51072(U))

[*1]

Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co.

2021 NY Slip Op 51072(U) [73 Misc 3d 136(A)]

Decided on November 12, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 12, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : DAVID ELLIOT, J.P., MICHELLE WESTON, DONNA-MARIE E. GOLIA, JJ
2019-1549 K C

Psychology After Accident, P.C., as Assignee of Jean Roosevelt and Villa Jackson, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rachel Freier, J.), dated July 11, 2019. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignors had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order dated July 11, 2019, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was plaintiff’s assignors’ failure to appear for the IMEs. As limited by its brief, defendant appeals from so much of the order as denied its motion.

The proof submitted by defendant was sufficient to demonstrate that plaintiff’s assignors had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; cf. Satya Drug Corp. v Global Liberty Ins. Co. of NY, 65 Misc 3d [*2]127[A], 2019 NY Slip Op 51505[U] [App Term, 1st Dept 2019]), which showing plaintiff failed to rebut. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

ELLIOT, J.P., WESTON and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 12, 2021

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.

No-show defense: insurer's proof

Open the full map

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's proof sufficient to show that the assignors failed to appear for the IMEs, a showing the provider did not rebut, so the insurer was entitled to summary judgment.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

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. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

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.
Satya Drug Corp. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51505(U)) Contrasted (cf., but see)The insurer failed to prove the assignor's nonappearance at scheduled IMEs with competent evidence.

Similar decisions

Psychology YME, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50992(U))The insurer established two duly demanded EUOs, the assignor's two nonappearances, and a timely denial of the claim.
Elmont Rehab P.T., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50961(U))The insurer established the assignor's failure to attend duly scheduled IMEs and timely denials based on those nonappearances.
JCC Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51764(U))The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51256(U))The insurer proved timely mailing of the IME notices and denial and the assignor's nonappearance, warranting dismissal of the provider's claim.
Psychology After Acc., P.C. v Nationwide Ins. Co. of N.Y. (2022 NY Slip Op 50366(U))The insurer failed to prove timely denials after two missed EUOs, while the provider also failed to establish entitlement to summary judgment.