March 17, 2016
Pro Health Acupuncture, P.C. v Praetorian Ins. (2016 NY Slip Op 50380(U))
https://www.beynensonlaw.com/case-law/pro-health-acupuncture-p-c-v-praetorian-ins-2016-ny-slip-op50380u/
- Decided
- March 17, 2016
- Citation
- 2016 NY Slip Op 50380(U) · 51 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
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 Pro Health Acupuncture, P.C. v Praetorian Ins. (2016 NY Slip Op 50380(U))
| Pro Health Acupuncture, P.C. v Praetorian Ins. |
| 2016 NY Slip Op 50380(U) [51 Misc 3d 129(A)] |
| Decided on March 17, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1360 K C
against
Praetorian Insurance, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered March 12, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., a company that had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted an affidavit from the medical provider who was to perform the IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which, insofar as is relevant to this appeal, denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Consequently, defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722). As plaintiff failed to raise a triable issue of fact in opposition to the motion, the Civil Court should have granted defendant’s motion for summary judgment.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 17, 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 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 requests through the scheduler's affidavit and nonappearance through the examining provider's affidavit, and the provider raised no triable issue.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the claims examiner's affidavit showed that the denial of claim forms based on the assignor's IME nonappearance were timely mailed, completing the no-show defense.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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 IME scheduler's affidavit established timely mailing of the IME requests and the claims examiner's affidavit established timely mailing of the denial of claim forms.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
- 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.
Similar decisions
- Mind & Body Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51658(U))The insurer established timely IME and EUO notices and denials and the assignor's nonappearances, warranting dismissal.
- Vit Acupuncture, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 52000(U))The insurer's affidavits established timely IME notices and denials and the assignor's failure to attend the scheduled IMEs. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment dismissing the complaint.
- Arcadia Imaging, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51208(U))The insurer's affidavits established timely mailing of IME notices and the denial, as well as the assignor's IME nonappearances.
- Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co. (2017 NY Slip Op 51870(U))The insurer established timely IME scheduling, the assignor's nonappearance and timely denials, warranting dismissal of the claims.
- All About Rehabilitation & P.T., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51815(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy.