October 19, 2016

Five Boro Med. Equip., Inc. v Praetorian Ins. Co. (2016 NY Slip Op 51481(U))

https://www.beynensonlaw.com/case-law/five-boro-med-equip-inc-v-praetorian-ins-co-2016-ny-slip-op51481u/

Court: Appellate Term, First Department
Decided: October 19, 2016
Citation: 2016 NY Slip Op 51481(U) · 53 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Declined to follow in 1 later decision (see Cited by)
Issues: IME no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Five Boro Med. Equip., Inc. v Praetorian Ins. Co., 53 Misc 3d 138(A), 2016 NY Slip Op 51481(U) (App Term, 1st Dept 2016)

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's IME doctors' conclusory affidavits failed to establish the assignor's nonappearance at scheduled IMEs. The insurer obtained summary judgment dismissing the provider's first-party no-fault action. Its doctors' affidavits lacked probative value because they did not adequately explain the basis for their recollection, approximately three years later, that the assignor had missed the scheduled examinations. Without competent proof of nonappearance, the insurer was not entitled to summary judgment. The Appellate Term, First Department, reversed the order and denied the insurer's motion.

Reported in New York Official Reports at Five Boro Med. Equip., Inc. v Praetorian Ins. Co. (2016 NY Slip Op 51481(U))

[*1]

Five Boro Med. Equip., Inc. v Praetorian Ins. Co.

2016 NY Slip Op 51481(U) [53 Misc 3d 138(A)]

Decided on October 19, 2016

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
570196/16

Five Boro Medical Equipment, Inc., a/a/o Stephanie Roldan, Plaintiff-Appellant,
against
Praetorian Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Feinman, J.), entered April 1, 2015, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Carol R. Feinman, J.), entered April 1, 2015, reversed, with $10 costs, and defendant’s motion denied.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to adequately state the basis of their recollection, some three years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 19, 2016

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.

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 nonappearance by someone with personal knowledge

Held the insurer failed to prove the assignor's IME nonappearance because its IME doctors' conclusory affidavits did not state the basis of their recollection, three years later, that the assignor did not appear.

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

Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 14 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am. (2016 NY Slip Op 50339(U)) FollowedThe insurer failed to establish IME nonappearance through affidavits that did not explain the doctors' recollections a year later.
Metro 8 Med. Equip., Inc. v ELRAC, Inc. (2016 NY Slip Op 50174(U)) FollowedThe insurer failed to submit competent proof that the assignor missed scheduled IMEs. The Appellate Term, First Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion.

Cited by

A label shows how the later decision treated this one.

Advanced Recovery v Allstate Ins. Co. (2021 NY Slip Op 21148) Declined to followThe examiners' affidavits established IME nonappearance despite being sworn over three years later without explaining the basis of recollection.
Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U))The insurer failed to submit competent proof that the assignor missed the scheduled IMEs. The IME doctor's conclusory affirmation did not adequately explain the basis for recalling, approximately two years later, that the assignor had not appeared on the scheduled dates.
Satya Drug Corp. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51505(U))The insurer failed to prove the assignor's nonappearance at scheduled IMEs with competent evidence.

Similar decisions

S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))The insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices.
Five Boro Psychological Servs., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51336(U))The insurer failed to establish two IME nonappearances because its rescheduling letter could reflect a mutual agreement to reschedule.
Five S & A Rehab Pt, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51724(U))The insurer's affirmed IME report established lack of medical necessity, and the provider failed to rebut that showing.
Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2016 NY Slip Op 50924(U))The insurer's affidavits established that the assignor failed to appear for duly scheduled IMEs. The provider sued to recover assigned no-fault benefits, and the Civil Court denied the insurer's summary judgment motion while limiting the trial issue under CPLR 3212 (g) to the assignor's nonappearance.
MDJ Med., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50895(U))The insurer proved timely mailing of IME and EUO notices and the assignor's repeated nonappearances.