November 30, 2018
JCC Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51764(U))
https://www.beynensonlaw.com/case-law/jcc-med-p-c-v-american-tr-ins-co-2018-ny-slip-op-51764u/
- Decided
- November 30, 2018
- Citation
- 2018 NY Slip Op 51764(U)
- 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 JCC Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51764(U))
| JCC Med., P.C. v American Tr. Ins. Co. |
| 2018 NY Slip Op 51764(U) |
| Decided on November 30, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-712 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker (Netanel Benchaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 14, 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 contention, the affirmation defendant submitted from the doctor who was to perform the scheduled IMEs of plaintiff’s assignor was sufficient to establish that plaintiff’s assignor had failed to appear for those IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Plaintiff’s remaining contention with respect to this defense is not properly before this court, as this argument is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018
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 nonappearance; the provider's other argument was not considered because raised first on appeal.
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.
Cited in this decision
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
Similar decisions
- Great Health Care Chiropractic, P.C. v Tri State Consumers Ins. Co. (2016 NY Slip Op 50864(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy.
- Kappa Med., P.C. v Chubb Indem. Ins. Co. (2017 NY Slip Op 51199(U))The insurer's doctor's affidavit failed to establish the assignor's IME nonappearance through personal knowledge or other appropriate proof.
- 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.
- Excel Med. & Diagnostic, P.C. v Park Ins. Co. (2019 NY Slip Op 50989(U))The scheduled IME doctor's affirmation established the assignor's nonappearance, resolving the sole issue reserved for trial.
- Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51671(U))The insurer proved timely mailing of EUO notices and denials and the assignor's nonappearance, supporting dismissal of the disputed claims.