July 21, 2017

Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50952(U))

https://www.beynensonlaw.com/case-law/alleviation-med-servs-p-c-v-new-york-cent-mut-fire-ins-co-2017-ny-slip-op50952u/

Court: Appellate Term, Second Department
Decided: July 21, 2017
Citation: 2017 NY Slip Op 50952(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

Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 50952(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 mailing of IME notices because the record showed conflicting addresses and no confirmed attorney representation. Its papers stated that scheduling letters were sent to the address on the NF-2 form or supplied by counsel, but the notices used East 107th Street while the denial form listed East 106th Street. Copies sent to an attorney did not cure the defect because nothing showed that the attorney represented the assignor. A receipt presumption requires proof of proper mailing, and the insurer did not establish duly scheduled IMEs. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion dismissing the provider's complaint.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50952(U))

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

Alleviation Medical Services, P.C., as Assignee of Pierre, James, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Gullo & Associates, LLP (Cristina Carollo, Esq.), for appellant. Gary Tsirelman, P.C. (Daria Klein, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 28, 2014. 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 held 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 IME scheduling letters are sent to the address the assignor puts on the NF-2 form or to the address which is provided by the assignor’s counsel. While defendant further stated that a copy of the NF-10 denial of claim form is sent to the plaintiff’s assignor, the address to which the IME scheduling letter was sent was “East 107th St,” while the NF-10 form stated that the assignor resided on “East 106th St.” 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 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. [*2]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 SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2017

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

Open the full map

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 were addressed to East 107th St while the assignor resided on East 106th St, and copies to an unconnected attorney did not cure it.

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

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (this one included) are in the same category.

No-show defense: insurer's proof

Open the full map

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 went to an incorrect street 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 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (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

Alleviation Med. Servs., P.C. v A Cent. Ins. Co. (2016 NY Slip Op 50383(U))The insurer failed to establish timely and proper mailing of the IME scheduling letters, defeating summary judgment on its nonappearance defense.
Alleviation Med. Servs., P.C. v Maya Assur. Co. (2015 NY Slip Op 51238(U))The insurer failed to establish timely mailing of the IME scheduling letters and was denied summary judgment.
Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))The insurer failed to prove both IME nonappearances, and the provider failed to establish an untimely or legally defective denial.
Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50922(U))The insurer failed to establish the assignor's IME nonappearance or receipt of notice of both scheduled IMEs. The provider appealed from summary judgment dismissing its assigned no-fault claims.
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.