November 12, 2020
Unitrin Advantage Ins. Co. v Cohen & Kramer M.D., P.C. (2020 NY Slip Op 06474)
https://www.beynensonlaw.com/case-law/unitrin-advantage-ins-co-v-cohen-kramer-m-d-p-c-2020-ny-slip-op06474/
- Decided
- November 12, 2020
- Citation
- 2020 NY Slip Op 06474 · 188 AD3d 511
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- 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 Unitrin Advantage Ins. Co. v Cohen & Kramer M.D., P.C. (2020 NY Slip Op 06474)
| Unitrin Advantage Ins. Co. v Cohen & Kramer M.D., P.C. |
| 2020 NY Slip Op 06474 [188 AD3d 511] |
| November 12, 2020 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Unitrin Advantage Insurance Company,
Appellant, v Cohen & Kramer M.D., P.C., Respondent. |
Goldberg, Miller & Rubin, P.C., New York (Harlan R. Schreiber of counsel), for appellant.
Slotnick & Ashkenazy, LLP, Rockville Centre (Howard J. Stern of counsel), for respondent.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about August 1, 2019, which, in this action pursuant to Insurance Law § 5106 (c) for de novo review of a master arbitrator’s award, denied plaintiff insurer’s motion for summary judgment declaring it has no obligation to pay no-fault benefits to defendant medical provider, and granted defendant’s cross motion for summary judgment confirming the arbitration award, unanimously reversed, on the law, without costs, to grant plaintiff’s motion and to deny defendant’s cross motion. The Clerk is directed to enter judgment declaring in plaintiff’s favor.
Plaintiff insurer’s evidence, including affidavits attesting in detail to the regular business procedures and practices in the handling of its no-fault claims, including providing notice of scheduled IME exams to claimants, together with the mailing ledgers, which were signed and date-stamped by U.S. Postal Service employees, and listed therein IME notices received for mailing to the claimant here at his resident address, provided sufficient proof of proper mailing to support a presumption that the IME notices were received by the claimant (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [1st Dept 2004]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]). Although the notices incorrectly added the designation “1st Floor” to the address, there is no dispute that the address was otherwise correct and that claimant resided at that building (see Cadle Co. v Tri-Angle Assoc., 18 AD3d 100 [1st Dept 2005]).
The burden on the motion having shifted, defendant failed to offer any evidence in opposition, such as an affidavit from the claimant disavowing receipt of the IME notices or even describing the building composition in a manner that would support an inference that the inclusion of a floor in the address would result in nonreceipt. Plaintiff thus established that the injured claimant failed to appear for three properly scheduled IMEs, constituting breach of a condition precedent to no-fault coverage, warranting the denial of defendant’s claims to no-fault benefits for its medical services rendered to the claimant (see 11 NYCRR 65-1.1; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Concur—Kapnick, J.P., Mazzarelli, Moulton, Mendez, JJ.
Legal questions (2)
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 office-practice affidavits plus postal-stamped mailing ledgers created a presumption of receipt of the IME notices; an erroneous '1st Floor' did not defeat it absent evidence of nonreceipt.
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
Held the insurer proved the IME notices were properly mailed despite an added floor designation and that the claimant missed three properly scheduled IMEs; the provider offered no opposing evidence.
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.
- 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.
Similar decisions
- Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))The insurer established timely and proper mailing of IME notices and the assignor's nonappearance, without a triable rebuttal.
- All County, LLC v Unitrin Advantage Ins. Co. (2011 NY Slip Op 50621(U))An insurer's request for an IME is not subject to the objective justification requirement applicable to EUO requests.
- Stanley Liebowitz, M.D., P.C. v Unitrin Preferred Ins. Co. (2012 NY Slip Op 52363(U))The insurer proved timely and proper mailing of IME notices and the assignor's nonappearance, warranting dismissal.
- Unitrin Advantage Ins. Co. v All of NY, Inc. (2018 NY Slip Op 00810)The insurer's EUO defense failed for four claims because of untimely scheduling notices or insufficient denial grounds.
- Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))The insurer established mailing of the IME notices and the assignor's nonappearance, while the provider raised no triable issue.