March 22, 2019
Vital Chiropractic, P.C. v Nationwide Ins. Co. (2019 NY Slip Op 50425(U))
https://www.beynensonlaw.com/case-law/vital-chiropractic-p-c-v-nationwide-ins-co-2019-ny-slip-op-50425u/
- Decided
- March 22, 2019
- Citation
- 2019 NY Slip Op 50425(U) · 63 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Split result
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 Vital Chiropractic, P.C. v Nationwide Ins. Co. (2019 NY Slip Op 50425(U))
| Vital Chiropractic, P.C. v Nationwide Ins. Co. |
| 2019 NY Slip Op 50425(U) [63 Misc 3d 132(A)] |
| Decided on March 22, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, BERNICE D. SIEGAL, JJ
2017-625 K C
against
Nationwide Insurance Company, Respondent.
Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and Jamin Koo of counsel), for appellant. Gialleonardo, McDonald, Safranek & Turchetti (Kevon Lewis of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 14, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the amount of $342.01 is denied; as so modified, the order is affirmed, without 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 granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.Contrary to plaintiff’s contention, the proof submitted by defendant was sufficient to establish the proper mailing of the independent medical examination (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 IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant further demonstrated that it had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its NF-10 forms denying the claims at issue, except for the claim seeking reimbursement in the amount of $342.01. As to that claim, we find on this record that there is an issue of fact as to whether defendant ever received it. Consequently, neither party is entitled to summary judgment upon that claim.
Plaintiff’s remaining contentions lack merit.
Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the amount of $342.01 is denied.
PESCE, P.J., WESTON and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 22, 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: Different mailing results for different documents or claims in one decision
Held the insurer proved mailing of the IME scheduling letters and timely mailing of its denials, except for one claim, as to which a triable issue existed whether the insurer ever received it.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 55 (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 contention, that the insurer's proof established proper mailing of the IME scheduling letters and the assignor's failure to appear for the 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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial (rules on the question, but another ground decided the case)
Held the insurer showed timely mailed denials on the IME no-show ground for all claims but one, for which a fact issue as to whether the claim was ever received left the insurer without summary judgment.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (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
- Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U))The provider failed to raise a factual issue that it supplied outstanding verification or reasonably justified withholding it.
- 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.
- Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2017 NY Slip Op 51843(U))The insurer failed to prove mailing of IME notices, and the provider failed to establish its prima facie entitlement to summary judgment.
- First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U))The insurer's summary judgment dismissing claims for the assignor's EUO nonappearances was affirmed on proof of timely denial.
- Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2014 NY Slip Op 51803(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.