December 6, 2019
Pro-Align Chiropractic, P.C. v Integon Natl. Ins. Co. (2019 NY Slip Op 51967(U))
https://www.beynensonlaw.com/case-law/pro-align-chiropractic-p-c-v-integon-natl-ins-co-2019-ny-slip-op51967u/
- Decided
- December 6, 2019
- Citation
- 2019 NY Slip Op 51967(U) · 65 Misc 3d 157(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Pro-Align Chiropractic, P.C. v Integon Natl. Ins. Co. (2019 NY Slip Op 51967(U))
| Pro-Align Chiropractic, P.C. v Integon Natl. Ins. Co. |
| 2019 NY Slip Op 51967(U) [65 Misc 3d 157(A)] |
| Decided on December 6, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-817 K C
against
Integon National Ins. Co., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Lisa Taranto-Fernandez of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 17, 2018. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied the branch of plaintiff’s cross motion seeking to compel defendant to serve responses to plaintiff’s discovery demands.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied the branch of plaintiff’s cross motion seeking to compel defendant to serve responses to plaintiff’s discovery demands.
Contrary to plaintiff’s arguments, defendant’s proof sufficiently established that defendant had timely mailed the IME scheduling letters and the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v [*2]Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining contention lacks merit.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 6, 2019
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 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
Rejected the provider's arguments and held the insurer's proof sufficiently established timely mailing of the IME scheduling letters and the denial forms.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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, contrary to the provider's arguments, that the insurer proved timely mailing of the IME letters and the assignor's nonappearance, so dismissal was affirmed.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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)
Found the insurer established timely mailing of its denial forms as part of its IME no-show defense.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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
- Total Chiropractic, P.C. v Integon Natl. Ins. Co. (2021 NY Slip Op 50443(U))The insurer's affidavit failed to establish proper mailing of IME notices, and the provider failed to show entitlement to summary judgment.
- True-Align Chiropractic Care, P.C. v Country Wide Ins. Co. (2014 NY Slip Op 51821(U))The insurer proved nonreceipt of requested verification for one claim and the assignor's IME nonappearances for the remaining claims.
- Serge Chiropractic Servs., P.C. v Farmington Cas. Co. (2019 NY Slip Op 50698(U))The insurer's motion for summary judgment dismissing the claims based on the assignor's failure to appear for IMEs was upheld.
- Alpine Chiropractic, P.C. v Integon Natl. Ins. Co. (2020 NY Slip Op 51332(U))The insurer established timely IME notices and denials and the assignor's nonappearance, warranting dismissal of the provider's claims.
- Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance.