October 31, 2016
Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51598(U))
https://www.beynensonlaw.com/case-law/central-park-physical-medicine-rehab-p-c-v-national-liab-fire-ins-co-2016-ny-slip-op-51598u/
- Decided
- October 31, 2016
- Citation
- 2016 NY Slip Op 51598(U) · 53 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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 Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51598(U))
| Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co. |
| 2016 NY Slip Op 51598(U) [53 Misc 3d 145(A)] |
| Decided on October 31, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2015-350 S C
against
National Liability & Fire Insurance Company, Appellant.
Appeal from an order of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), dated December 23, 2014. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, for summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). In opposition, plaintiff argued with respect to those causes of action that defendant had failed to establish that it had timely mailed its IME scheduling letters and denial of claim forms. By order dated December 23, 2014, the District Court, among other things, denied those branches of defendant’s motion.
Upon a review of the record, we find that defendant failed to establish as a matter of law that the IME scheduling letters at issue had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, as defendant did not demonstrate that its 30-day period to pay or deny the claims had been tolled, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action.
Accordingly, the order, insofar as appealed from, is affirmed.
Iannacci, J.P., Tolbert and Garguilo, JJ., concur.
Decision Date: October 31, 2016
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: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer failed to establish as a matter of law that its IME scheduling letters had been timely and properly mailed.
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.
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
Denied the insurer summary judgment on the IME no-show defense because it failed to establish that the IME scheduling letters had been timely and properly mailed.
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.
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 did not show its 30-day period to pay or deny was tolled, because it did not prove timely mailing of the IME letters, so it made no prima facie showing on the IME no-show defense.
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.
Similar decisions
- Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. (2019 NY Slip Op 51148(U))The insurer's first-class EUO notices sufficed despite the disputed proof of certified mailing of the follow-up notice.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50472(U))An insurer's IME nonappearance defense is subject to preclusion if the insurer fails to timely deny the claims.
- East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))The insurer proved mailing of the IME notices, timely mailing of the denials, and the assignor's failure to attend the scheduled IMEs. An employee of the scheduling company established mailing through its standard office practices and procedures.
- Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))The insurer established timely mailing of IME notices and the assignor's repeated nonappearance through affidavits based on personal knowledge.
- Ortho Passive Motion, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51364(U))The insurer established timely IME notices, the assignor's nonappearance, and timely denials after receipt of requested verification.