March 12, 2015
I.V. Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50380(U))
https://www.beynensonlaw.com/case-law/i-v-med-supply-inc-v-praetorian-ins-co-2015-ny-slip-op50380u/
- Decided
- March 12, 2015
- Citation
- 2015 NY Slip Op 50380(U) · 47 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Proof of mailing · No-show defense: insurer's proof (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 I.V. Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50380(U))
| I.V. Med. Supply, Inc. v Praetorian Ins. Co. |
| 2015 NY Slip Op 50380(U) [47 Misc 3d 129(A)] |
| Decided on March 12, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2298 K C
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered August 3, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, 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 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 assignor to appear for duly scheduled independent medical examinations (IMEs). Insofar as is relevant to this appeal, the Civil Court, made, in effect, CPLR 3212 (g) findings that defendant’s denial of claim forms were timely and proper, and that the sole issues for trial were whether the IME scheduling letters had been timely and properly mailed and whether plaintiff’s assignor had failed to appear for duly scheduled IMEs.
In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted affidavits from the chiropractors who were to perform the IMEs, which were sufficient to establish that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 12, 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.
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
Held the affidavit of the president of the insurer's IME scheduling company sufficiently established that the IME requests were timely mailed, resolving one of the two issues left for trial.
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.
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 scheduler's affidavit established timely mailing of the IME requests and the chiropractors' affidavits established the assignor's nonappearance, entitling the insurer to summary judgment.
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.
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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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
- XVV, Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51819(U))The insurer's affidavits and physician affirmations established timely mailing of IME requests and the assignor's nonappearances.
- Cortland Med. Supply, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50394(U))The insurer established the assignor's failure to attend duly scheduled IMEs and timely mailing of the requests and denials.
- Park Slope Med. v Praetorian Ins. Co. (2011 NY Slip Op 52062(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.
- 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.
- 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.