June 3, 2016

MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50863(U))

https://www.beynensonlaw.com/case-law/mb-advanced-equip-inc-v-new-york-cent-mut-fire-ins-co-2016-nyslip-op-50863u/

Court: Appellate Term, Second Department
Decided: June 3, 2016
Citation: 2016 NY Slip Op 50863(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: IME no-show Provider's prima facie case
Legal questions: No-show defense: insurer's proof · Claimant's prima facie case on motions (see the maps)

Cite as

MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 50863(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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.

Conflicting affidavits about the examiners' locations prevented summary judgment on the assignors' alleged IME nonappearance. The insurer's doctor and chiropractor affidavits initially established nonappearance, but the provider submitted earlier affidavits in which those examiners placed themselves elsewhere when the IMEs were scheduled. Counsel's reply assertion that the discrepancies were typographical errors lacked sufficient personal knowledge to establish attendance at the correct location. The insurer also failed to articulate a sufficient basis to disturb CPLR 3212 (g) findings in the provider's favor, including its prima facie case. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment motion.

Reported in New York Official Reports at MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50863(U))

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

MB Advanced Equipment, Inc., as Assignee of MARCUS ERIE, SACHELL ERIE and RUTH JEAN-TOUSSAINT, Respondent,
against
New York Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered June 13, 2013. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on the failure of plaintiff’s assignors to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion but made, in effect, CPLR 3212 (g) findings that defendant’s denial of claim forms had been timely and proper, that plaintiff had established its prima facie case and that the sole issue for trial was whether plaintiff’s assignors had failed to appear for duly scheduled IMEs.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

In support of its motion, defendant submitted affidavits from the doctor and chiropractor who were to perform the IMEs, which affidavits were sufficient to establish that plaintiff’s assignors had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). However, in opposition, plaintiff submitted affidavits in which the doctor and chiropractor had previously sworn, under penalty of perjury, that when the IMEs were scheduled to occur, they were at a location other than the address set forth in the IME scheduling letters. To the extent defendant’s counsel asserted in a reply affirmation that the discrepancy was due to typographical errors in the prior affidavits, counsel did not demonstrate that she possessed personal knowledge sufficient to establish, as a matter of law, that the doctor and chiropractor were at the correct location when the IMEs were to be held.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 03, 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.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Proof on the no-show raises a question of fact; neither side wins the point as a matter of law

Held that the examiners' affidavits showed the assignors' nonappearance, but their earlier sworn statements placing them elsewhere on the IME dates raised a triable issue, and counsel's reply lacked personal knowledge to resolve it.

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

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 24 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Left intact the finding that the provider established its prima facie case, because the insurer gave no sufficient basis to strike the CPLR 3212 (g) findings in the provider's favor.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.

Cited in this decision

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

EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U)) FollowedThe insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.
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.

Cited by

Advanced Recovery v Allstate Ins. Co. (2021 NY Slip Op 21148)The examiners' affidavits established IME nonappearance despite being sworn over three years later without explaining the basis of recollection.

Similar decisions

By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices.
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.
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.
Past v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51774(U))The scheduled IME doctor's affirmation established the assignor's nonappearance, warranting dismissal of the provider's claims.
Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51758(U))The insurer established timely IME requests and denials and the assignor's failure to attend the scheduled examinations.