May 18, 2015

T & J Chiropractic, P.C. v Geico Ins. Co. (2015 NY Slip Op 50772(U))

https://www.beynensonlaw.com/case-law/t-j-chiropractic-p-c-v-geico-ins-co-2015-ny-slip-op50772u/

Court: Appellate Term, Second Department
Decided: May 18, 2015
Citation: 2015 NY Slip Op 50772(U)
Posture: Summary judgment
Outcome: Split result
Issues: IME no-show Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

T & J Chiropractic, P.C. v Geico Ins. Co., 2015 NY Slip Op 50772(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 failed to prove IME nonappearance because the scheduled examiners' sworn statements did not demonstrate personal knowledge. The insurer sought dismissal of the third and fourth causes of action based on the assignor's alleged failure to attend IMEs. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny those branches of the insurer's cross motion. It affirmed denial of the provider's motion on the first, third and fourth causes because the provider had not shown absent or legally insufficient denials. Findings under CPLR 3212 (g) established submission of the claims and nonpayment within 30 days, but did not establish the missing denial element; those findings were not reviewed on appeal.

Reported in New York Official Reports at T & J Chiropractic, P.C. v Geico Ins. Co. (2015 NY Slip Op 50772(U))

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

T & J Chiropractic, P.C. as Assignee of JEANNE BAPTISTE, Appellant,
against
Geico Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered August 6, 2012. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the first, third and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the third and fourth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment on the third and fourth causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, third and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the third and fourth causes of action.

The Civil Court properly denied those branches of plaintiff’s motion seeking summary judgment on the first, third and fourth causes of action. While the Civil Court found, in effect, for all purposes in the action (see CPLR 3212 [g]), that plaintiff had submitted the claim forms at issue to defendant and that defendant had not paid these claims within the requisite 30-day period (which findings we do not review on this appeal), the court found neither that defendant had failed to deny these claims or that defendant had issued a legally insufficient denial of claim form with respect to these claims (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), and plaintiff has not made such a showing.

However, the branches of defendant’s cross motion seeking summary judgment dismissing the third and fourth causes of action should have been denied. The ground proffered for the dismissal of these causes of action was that defendant had timely and properly denied the claims underlying these causes of action based on plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). While defendant submitted properly sworn statements by the chiropractor and doctor who were scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations, and therefore defendant failed to establish its entitlement as a matter of law to the dismissal of these causes of action (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment on the third and fourth causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015

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.

Claimant's prima facie case on motions

Open the full map

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

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held that, although submission and nonpayment within 30 days were found, the provider did not show that the insurer failed to deny the claims or issued a legally insufficient denial.

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, 247 (this one included) are in the same category.

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's cross motion should have been denied because neither the chiropractor nor the doctor scheduled to perform the IMEs showed personal knowledge of the assignor's nonappearance.

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, 79 (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)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Quality Health Prods. v Hertz Claim Mgt. Corp (2012 NY Slip Op 51722(U))The insurer proved the assignors' IME nonappearances through affidavits from a chiropractor and orthopedist with personal knowledge.

Similar decisions

Compas Med., P.C. v Geico Ins. Co. (2015 NY Slip Op 51590(U))The insurer's conclusory IME nonappearance proof and the provider's deficient prima facie showing defeated both motions on the third cause of action.
T & J Chiropractic, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51673(U))The provider's proof of mailing requested verification raised a factual issue as to whether its action was premature.
Parkview Med. & Surgical, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51822(U))The insurer proved the assignor's IME nonappearances but failed to establish its fee schedule defense for other claims.
T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50406(U))The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
Jamhil Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51644(U))The insurer established timely mailing of IME notices and a denial based on the assignor's failure to appear for the scheduled IMEs. The president of the independent medical review service retained to schedule the examinations established timely mailing of the scheduling letters.