May 3, 2019
Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U))
https://www.beynensonlaw.com/case-law/preferred-ortho-prods-inc-v-hereford-ins-co-2019-ny-slip-op50688u/
- Decided
- May 3, 2019
- Citation
- 2019 NY Slip Op 50688(U) · 63 Misc 3d 146(A)
- 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 Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U))
| Preferred Ortho Prods., Inc. v Hereford Ins. Co. |
| 2019 NY Slip Op 50688(U) [63 Misc 3d 146(A)] |
| Decided on May 3, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 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
2017-283 Q C
against
Hereford Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rubin & Nazarian (Tasnim Hassanali of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered November 9, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross 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).
Contrary to plaintiff’s arguments, defendant’s proof sufficiently established the proper mailing of the IME scheduling letters (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 Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
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
Rejected the provider's arguments and held the insurer's proof sufficiently established proper mailing of the IME scheduling letters.
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.
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 proper mailing of the IME scheduling letters and the assignor's nonappearance at the scheduled IMEs.
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.
- 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
- Preferred Ortho Prods., Inc. v 21st Century Ins. Co. (2019 NY Slip Op 50224(U))The provider's challenge to the address on the IME scheduling letters was unpreserved because it was first raised on appeal.
- Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))The provider's challenge to proof of denial mailing failed, and its remaining argument was raised for the first time on appeal.
- Ortho Passive Motion, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51364(U))The insurer established timely IME notices, the assignor's nonappearance, and timely denials after receipt of requested verification.
- Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51320(U))The provider's objection that the IME notices improperly included an apartment number was unpreserved.
- Compas Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 50953(U))The insurer's submissions established a presumption that its IME nonappearance denials were timely and properly mailed.