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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/

Court
Appellate Division, First Department
Decided
November 12, 2020
Citation
2020 NY Slip Op 06474 · 188 AD3d 511
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
IME no-show Timeliness and preclusion
Legal questions
Proof of mailing · No-show defense: insurer's proof (see the maps)
Cite as
Unitrin Advantage Ins. Co. v Cohen & Kramer M.D., P.C., 188 AD3d 511 (1st Dept 2020)

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.

The insurer proved mailing of IME notices and the claimant's three nonappearances despite an incorrect floor designation. In an action for de novo review under Insurance Law § 5106 (c), detailed business-practice affidavits and postal ledgers supported presumed receipt. The address was otherwise correct, and the provider offered no evidence of nonreceipt or building configuration suggesting misdelivery. The nonappearances breached a condition precedent to coverage under 11 NYCRR 65-1.1. The Appellate Division, First Department, reversed the order, granted the insurer summary judgment declaring no obligation to pay, and denied the provider's cross motion to confirm the arbitration award.

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.
As corrected through Wednesday, December 30, 2020

[*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.

Proof of mailing

Open the full map

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.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 25
  • Appellate TermApp Term 98
  • Trial courtsTrial 36
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2023, Appellate Division: 1 decision (1 Insurer proved mailing)2022, Appellate Division: 1 decision (1 Insurer proved mailing)2020, Appellate Division: 1 decision (1 Insurer proved mailing)2019, Appellate Division: 1 decision (1 Insurer failed to prove)2018, Appellate Division: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2016, Appellate Division: 2 decisions (1 Insurer proved mailing, 1 Insurer failed to prove)2015, Appellate Division: 5 decisions (5 Insurer proved mailing)2014, Appellate Division: 1 decision (1 Insurer proved mailing)2013, Appellate Division: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2024, Appellate Division: 2 decisions (2 Insurer proved mailing)2025, Appellate Division: 3 decisions (2 Insurer proved mailing, 1 Insurer failed to prove)2017, Appellate Term: 3 decisions (2 Insurer failed to prove, 1 Provider proved mailing)2016, Appellate Term: 12 decisions (12 Insurer proved mailing)2015, Appellate Term: 18 decisions (14 Insurer proved mailing, 2 Insurer failed to prove, 1 Provider proved mailing, 1 Provider failed to prove)2014, Appellate Term: 15 decisions (11 Insurer proved mailing, 2 Insurer failed to prove, 2 Triable issue on mailing)2013, Appellate Term: 7 decisions (5 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2012, Appellate Term: 16 decisions (11 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider failed to prove, 1 Triable issue on mailing)2011, Appellate Term: 8 decisions (7 Insurer proved mailing, 1 Insurer failed to prove)2010, Appellate Term: 3 decisions (2 Insurer proved mailing, 1 Provider proved mailing)2008, Appellate Term: 3 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider proved mailing)2007, Appellate Term: 1 decision (1 Provider failed to prove)2006, Appellate Term: 6 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing)2004, Appellate Term: 1 decision (1 Provider proved mailing)2025, Appellate Term: 2 decisions (2 Insurer proved mailing)2026, Appellate Term: 1 decision (1 Insurer proved mailing)2005, Appellate Term: 1 decision (1 Insurer proved mailing)2020, Appellate Term: 1 decision (1 Insurer failed to prove)2022, Trial courts: 2 decisions (1 Insurer proved mailing, 1 Insurer failed to prove)2021, Trial courts: 6 decisions (5 Insurer proved mailing, 1 Provider proved mailing)2020, Trial courts: 3 decisions (1 Insurer failed to prove, 2 Provider failed to prove)2019, Trial courts: 2 decisions (2 Insurer proved mailing)2018, Trial courts: 3 decisions (2 Insurer proved mailing, 1 Triable issue on mailing)2013, Trial courts: 2 decisions (2 Insurer proved mailing)2009, Trial courts: 2 decisions (1 Insurer proved mailing, 1 Provider proved mailing)2008, Trial courts: 2 decisions (2 Insurer proved mailing)2007, Trial courts: 2 decisions (1 Insurer proved mailing, 1 Provider proved mailing)2024, Trial courts: 2 decisions (2 Insurer proved mailing)2025, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider proved mailing)2026, Trial courts: 2 decisions (2 Insurer failed to prove)2005, Trial courts: 1 decision (1 Mixed rulings)2006, Trial courts: 2 decisions (1 Provider proved mailing, 1 Triable issue on mailing)2023, Trial courts: 1 decision (1 Insurer proved mailing)This decision
20052010201520202025
Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

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.

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 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.

  • Appellate DivisionApp Div 53
  • Appellate TermApp Term 71
  • Trial courtsTrial 40
2023, Appellate Division: 4 decisions (3 Defense proved, 1 Requests not compliant)2022, Appellate Division: 8 decisions (3 Defense proved, 5 Requests not compliant)2021, Appellate Division: 2 decisions (2 Defense proved)2020, Appellate Division: 4 decisions (3 Defense proved, 1 Requests not compliant)2019, Appellate Division: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2018, Appellate Division: 5 decisions (2 Defense proved, 1 Mailing not proved, 2 Requests not compliant)2017, Appellate Division: 3 decisions (2 Defense proved, 1 Requests not compliant)2016, Appellate Division: 5 decisions (3 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2015, Appellate Division: 7 decisions (2 Defense proved, 5 Requests not compliant)2014, Appellate Division: 2 decisions (2 Defense proved)2013, Appellate Division: 4 decisions (3 Defense proved, 1 Mailing not proved)2011, Appellate Division: 1 decision (1 Defense proved)2024, Appellate Division: 2 decisions (2 Defense proved)2025, Appellate Division: 3 decisions (2 Defense proved, 1 Requests not compliant)2019, Appellate Term: 3 decisions (1 Mailing not proved, 1 Nonappearance not proved, 1 Triable issue)2018, Appellate Term: 1 decision (1 Defense proved)2017, Appellate Term: 1 decision (1 Nonappearance not proved)2016, Appellate Term: 14 decisions (5 Defense proved, 6 Nonappearance not proved, 1 Requests not compliant, 2 Triable issue)2015, Appellate Term: 12 decisions (11 Defense proved, 1 Requests not compliant)2014, Appellate Term: 6 decisions (6 Defense proved)2013, Appellate Term: 5 decisions (4 Defense proved, 1 Mailing not proved)2012, Appellate Term: 8 decisions (6 Defense proved, 2 Mailing not proved)2011, Appellate Term: 7 decisions (6 Defense proved, 1 Mailing not proved)2010, Appellate Term: 2 decisions (2 Defense proved)2007, Appellate Term: 1 decision (1 Requests not compliant)2006, Appellate Term: 2 decisions (1 Requests not compliant, 1 Triable issue)2005, Appellate Term: 3 decisions (1 Defense proved, 2 Requests not compliant)2025, Appellate Term: 3 decisions (3 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2020, Appellate Term: 1 decision (1 Mailing not proved)2022, Trial courts: 8 decisions (2 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 4 Requests not compliant)2021, Trial courts: 6 decisions (3 Defense proved, 2 Requests not compliant, 1 No-show excused)2020, Trial courts: 7 decisions (1 Mailing not proved, 6 Requests not compliant)2019, Trial courts: 1 decision (1 Defense proved)2018, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 3 decisions (2 Defense proved, 1 Nonappearance not proved)2013, Trial courts: 4 decisions (2 Defense proved, 2 Nonappearance not proved)2009, Trial courts: 1 decision (1 Defense proved)2007, Trial courts: 1 decision (1 Requests not compliant)2024, Trial courts: 1 decision (1 Requests not compliant)2025, Trial courts: 2 decisions (1 Mailing not proved, 1 Nonappearance not proved)2026, Trial courts: 1 decision (1 Mailing not proved)2005, Trial courts: 1 decision (1 Defense proved)2023, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

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.
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