February 23, 2017
Country-Wide Ins. Co. v Radiology of Westchester, P.C. (2017 NY Slip Op 01461)
https://www.beynensonlaw.com/case-law/country-wide-ins-co-v-radiology-of-westchester-p-c-2017-ny-slip-op01461/
- Decided
- February 23, 2017
- Citation
- 2017 NY Slip Op 01461 · 147 AD3d 652
- Posture
- Article 75 petition
- Outcome
- Insurer prevailed
- Legal questions
- Court review of arbitration awards · 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 Country-Wide Ins. Co. v Radiology of Westchester, P.C. (2017 NY Slip Op 01461)
| Country-Wide Ins. Co. v Radiology of Westchester, P.C. |
| 2017 NY Slip Op 01461 [147 AD3d 652] |
| February 23, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Country-Wide Insurance Company,
Appellant, v Radiology of Westchester, P.C., as Assignee of Elizabeth Colon, Respondent. |
Jaffe & Koumourdas, LLP, New York (Jean H. Kang of counsel), for appellant.
Frank S. Patruno Law Offices P.C., Montgomery (Frank S. Patruno of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Manuel J. Mendez, J), entered August 11, 2015, denying the unopposed petition to vacate a master arbitration award, dated March 17, 2015, which affirmed an arbitrator’s award that had granted respondent no-fault insurance benefits, unanimously reversed, on the law, without costs, the petition granted, and the award vacated. The Clerk is directed to enter judgment accordingly.
The master arbitrator’s award was arbitrary because it irrationally ignored petitioner’s uncontroverted evidence establishing that the assignor failed to appear at the three scheduled examinations under oath (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U] [App Term, 1st Dept 2015]). Concur—Friedman, J.P., Richter, Kapnick and Kahn, JJ.
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.
When does a court vacate, modify or confirm a no-fault arbitrator’s or master arbitrator’s award under CPLR article 75?
This decision: Award vacated or modified because it was irrational, arbitrary and capricious, without evidentiary support or contrary to settled law
Vacated the master award affirming the provider's award as arbitrary because it irrationally ignored the insurer's uncontroverted evidence that the assignor failed to appear at three scheduled examinations under oath.
Of the 55 decisions on this question in the First Department courts and the Court of Appeals, 13 (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 (rules on the question, but another ground decided the case)
Vacated the master arbitrator's award as irrational because it ignored the insurer's uncontroverted evidence that the assignor failed to appear for three scheduled EUOs.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 93 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Hertz Corp. v Active Care Med. Supply Corp. (2015 NY Slip Op 00212) Contrasted (cf., but see)A provider's failure to attend EUOs violates a condition precedent to no-fault coverage and vitiates the policy.
- Easy Care Acupuncture P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51524(U)) Contrasted (cf., but see)An insurer may request IMEs before a provider submits claim forms under 11 NYCRR 65-1.1.
Similar decisions
- Preferred Med. Imaging, P.C. v Countrywide Ins. Co. (2009 NY Slip Op 52577(U))An arbitration award requiring a provider to establish medical necessity is contrary to settled law.
- Country-Wide Ins. Co. v Valdan Acupuncture, P.C. (2017 NY Slip Op 04068)The insurer failed to establish grounds to vacate an award rejecting its fraudulent incorporation defense.
- R.J. Professional Acupuncturist, P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 50541(U))A provider establishes its prima facie no-fault claim by submitting complete proof of the fact and amount of loss and showing payment is overdue.
- Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co. (2022 NY Slip Op 02406)An initial EUO request sent more than 30 days after receipt of a claim is a nullity, unexcused by 11 NYCRR 65-3.5 (p).
- Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C. (2016 NY Slip Op 04156)A master arbitrator's award was irrational because it ignored the coverage effect of the assignor's failure to attend duly scheduled IMEs. The insurer presented authority establishing that the IME nonappearances rendered the no-fault policy void ab initio.