June 14, 2019
Excel Med. & Diagnostic, P.C. v Park Ins. Co. (2019 NY Slip Op 50989(U))
https://www.beynensonlaw.com/case-law/excel-med-diagnostic-p-c-v-park-ins-co-2019-ny-slip-op50989u/
- Decided
- June 14, 2019
- Citation
- 2019 NY Slip Op 50989(U) · 64 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
- Legal questions
- 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 Excel Med. & Diagnostic, P.C. v Park Ins. Co. (2019 NY Slip Op 50989(U))
| Excel Med. & Diagnostic, P.C. v Park Ins. Co. |
| 2019 NY Slip Op 50989(U) [64 Misc 3d 128(A)] |
| Decided on June 14, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-832 K C
against
Park Ins. Co., Appellant.
Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Gary Tsirelman, P.C. (Joseph Padrucco of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 4, 2016. 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 based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant’s motion but, in effect pursuant to CPLR 3212 (g), limited the issue for trial to whether plaintiff’s assignor had failed to appear for the scheduled IMEs.
In support of its motion, defendant submitted an affirmation from the doctor who was to perform the IMEs, which affirmation was sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). 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.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 14, 2019
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.
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 affirmation of the doctor who was to perform the IMEs sufficient to establish the assignor's failure to appear, the only issue left for trial, so the insurer was granted summary judgment.
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.
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.
Similar decisions
- 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.
- Past v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51774(U))The scheduled IME doctor's affirmation established the assignor's nonappearance, warranting dismissal of the provider's claims.
- Personal Touch Med. Care, P.C. v Maya Assur. Co. (2017 NY Slip Op 51823(U))The insurer failed to establish proper mailing of IME scheduling letters and therefore did not prove nonappearance at duly scheduled IMEs. Its affidavit did not sufficiently describe a standard office practice or procedure ensuring that the scheduling letters were properly addressed and mailed.
- 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.
- Compas Med., P.C. v ELRAC, Inc. (2016 NY Slip Op 51439(U))The defendant's IME doctor failed to establish personal knowledge of the assignor's nonappearance at the scheduled examinations.