May 25, 2018

Pierre J. Renelique, M.D., P.C. v Park Ins. Co. (2018 NY Slip Op 50780(U))

https://www.beynensonlaw.com/case-law/pierre-j-renelique-m-d-p-c-v-park-ins-co-2018-ny-slip-op-50780u/

Court: Appellate Term, Second Department
Decided: May 25, 2018
Citation: 2018 NY Slip Op 50780(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: IME no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Pierre J. Renelique, M.D., P.C. v Park Ins. Co., 2018 NY Slip Op 50780(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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.

The insurer failed to establish proper IME scheduling because its letters went to an address different from the one on the NF-3 form. The insurer sought summary judgment dismissing the provider's assigned no-fault claims. Its moving papers identified an address for mailing the IME notices that differed from the assignor's address on the submitted claim form. A presumption of receipt requires proof of proper mailing. Copies sent to an attorney did not cure the deficiency because the record did not show that the attorney represented the assignor. The Appellate Term, Second Department, affirmed the denial of the insurer's motion.

Reported in New York Official Reports at Pierre J. Renelique, M.D., P.C. v Park Ins. Co. (2018 NY Slip Op 50780(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Pierre J. Renelique, M.D., P.C., as Assignee of Guzman, Ramon, Respondent,
against
Park Ins. Co., Appellant.

Gullo & Associates, LLP (Natalie Socorro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 17, 2015. The order denied defendant’s 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to defendant’s contention, the Civil Court properly determined that defendant had failed to establish the timely and proper mailing of the independent medical examination (IME) scheduling letters. Defendant’s moving papers stated that the IME scheduling letters were sent to plaintiff’s assignor at “2497 Grant Avenue, Basement, Bronx, NY 10468,” but the NF-3 form submitted by plaintiff indicated that the assignor’s address was “2307 Morris Ave, #2C, Bronx NY 10453.” A presumption of receipt arises only where there is proof of a proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2013]). To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant’s moving papers failed to demonstrate that the IMEs had been properly scheduled (see Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing, 43 Misc 3d 127[A], 2014 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Infinity Health Prods., Ltd., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U]; cf. Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]) and, thus, that it is entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018

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.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held no presumption of receipt arose because the IME letters went to an address different from the assignor's address on the NF-3, and copies to an attorney not shown to represent the assignor did not suffice.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (this one included) are in the same category.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed

Held the insurer failed to show the IMEs were properly scheduled because the letters were mailed to a wrong address and to an attorney not shown to represent the assignor.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Infinity Health Prods., Ltd. v Redland Ins. Co. (2013 NY Slip Op 50751(U)) FollowedThe insurer failed to establish proper IME scheduling because notices used an incorrect ZIP code and counsel's representation was unproved.
Star Med. Servs., P.C. v Allstate Ins. Co. (2006 NYSlipOp 50344(U)) Contrasted (cf., but see)The insurer's misaddressed EUO demand did not toll its denial deadline, and EUO transcripts failed to support its coverage defense.

Similar decisions

Pierre Jean Renelique, MD, P.C. v Farmington Cas. Co. (2016 NY Slip Op 51420(U))The insurer failed to establish proper mailing of the letters scheduling the assignor's IMEs through proof of office mailing practices.
Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 51743(U))The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal.
Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51613(U))The insurer failed to prove mailing of the IME scheduling letters and therefore failed to establish that the assignor's IMEs were properly scheduled.
Pierre J. Renelique, M.D., P.C. v Travelers Ins. Co. (2017 NY Slip Op 51718(U))The insurer's summary judgment motion based on EUO nonappearance was granted as to the first and fourth through seventh causes of action.
Parisien v American Ind. Ins. Co. (2019 NY Slip Op 51735(U))The provider's certified-mail service did not establish personal jurisdiction over the insurer.