June 15, 2016
Urban Well Acupuncture, P.C. v Nationwide Gen. Ins. Co. (2016 NY Slip Op 50906(U))
https://www.beynensonlaw.com/case-law/urban-well-acupuncture-p-c-v-nationwide-gen-ins-co-2016-ny-slip-op50906u/
- Decided
- June 15, 2016
- Citation
- 2016 NY Slip Op 50906(U) · 52 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- No-show defense: insurer's proof · Proof of mailing (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 Urban Well Acupuncture, P.C. v Nationwide Gen. Ins. Co. (2016 NY Slip Op 50906(U))
| Urban Well Acupuncture, P.C. v Nationwide Gen. Ins. Co. |
| 2016 NY Slip Op 50906(U) [52 Misc 3d 126(A)] |
| Decided on June 15, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2016
PRESENT: Hunter, Jr., J.P, Schoenfeld, Shulman, JJ.
570009/16
against
Nationwide General Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered October 1, 2012, which granted defendant’s motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Frank P. Nervo, J.), entered October 1, 2012, affirmed, with $10 costs.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and the assignor’s attorney, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).
In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; see also American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]).
In view of our determination, we reach no other issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 15, 2016
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.
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
Held the insurer proved timely mailing of the IME notices and, through affidavits of the scheduled examiner and the IME scheduler's employee showing personal knowledge, the assignor's nonappearance; the provider raised no issue on nonappearance, mailing or reasonableness.
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the insurer established timely and proper mailing of the IME notices to the assignor and the assignor's attorney, and the provider raised no triable issue as to mailing.
Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273) FollowedFailure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
- American Tr. Ins. Co. v Marte-Rosario (2013 NY Slip Op 07416)The insurer's proof of IME notice mailing and the assignor's nonappearance established entitlement to a declaration of no coverage.
Similar decisions
- Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness.
- 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.
- Acupuncture Solutions, P.C. v Lumbermans Mut. Cas. Co. (2015 NY Slip Op 50346(U))An assignor's IME nonappearance permits retroactive denial of all claims to the date of loss regardless of denial timing or initial grounds.
- 21st Century Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50445(U))The insurer proved timely mailing of the IME notices and the assignor's nonappearance, warranting dismissal of the provider's claims.
- Healthy Way Acupuncture, P.C. v Allstate Ins. Co. (2014 NY Slip Op 50841(U))An assignor's failure to attend requested IMEs permits retroactive denial of all claims, regardless of denial timeliness or initial grounds.