August 28, 2020
Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51006(U))
https://www.beynensonlaw.com/case-law/focus-chiropractic-p-c-v-global-liberty-ins-co-of-n-y-2020-ny-slip-op51006u/
- Decided
- August 28, 2020
- Citation
- 2020 NY Slip Op 51006(U) · 68 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
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 Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51006(U))
| Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. |
| 2020 NY Slip Op 51006(U) [68 Misc 3d 133(A)] |
| Decided on August 28, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2019-127 K C
against
Global Liberty Ins. Co. of N.Y., Appellant.
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Gary Tsirelman, P.C. (Gary Tsirelman, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered November 2, 2018. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations 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 grounds that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and that the amounts plaintiff sought to recover upon the remaining claims exceeded the amount permitted by the workers’ compensation fee schedule. In opposition to defendant’s motion, plaintiff only submitted an affirmation from plaintiff’s counsel. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered November 2, 2018 as denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs.
The affidavit submitted by defendant in support of its motion sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff’s assignor, thereby duly scheduling the IMEs. Defendant also established that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition [*2]precedent to coverage (id. at 722). Defendant further established that when the claim at issue was subsequently received, it was timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) on that ground. As plaintiff failed to raise a triable issue of fact, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs should have been granted.
Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which was denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs is granted.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
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 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 established timely mailing of the IME scheduling letters and the assignor's nonappearance, and the provider's attorney affirmation raised no triable issue, so the no-show claim was dismissed.
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.
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)
Required the insurer to show that the claim, received after the IME no-shows, was timely denied on that ground, and found that showing made.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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's affidavit sufficient to establish timely mailing of the IME scheduling letters to the assignor and timely denial of the claim.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
Similar decisions
- 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.
- 21st Century Pharm., Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51377(U))The insurer established timely mailing of IME scheduling letters and the assignor's failure to appear for the duly scheduled examinations.
- 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.
- Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51758(U))The insurer established timely IME requests and denials and the assignor's failure to attend the scheduled examinations.
- Great Health Care Chiropractic, P.C. v Tri State Consumers Ins. Co. (2016 NY Slip Op 50864(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy.