December 30, 2014

SMB Med., P.C. v State Farm Mut. Ins. Co. (2014 NY Slip Op 51853(U))

https://www.beynensonlaw.com/case-law/smb-med-p-c-v-state-farm-mut-ins-co-2014-ny-slip-op51853u/

Court: Appellate Term, First Department
Decided: December 30, 2014
Citation: 2014 NY Slip Op 51853(U) · 46 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show Timeliness and preclusion
Legal questions: No-show defense: insurer's proof · Proof of mailing (see the maps)

Cite as

SMB Med., P.C. v State Farm Mut. Ins. Co., 46 Misc 3d 133(A), 2014 NY Slip Op 51853(U) (App Term, 1st Dept 2014)

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 proved the assignor's IME nonappearance through evidence of office practices and timely mailing of the notices. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment motion in its entirety. The insurer established proper, timely mailing of IME notices to the assignor and counsel. An examining physician's affirmation and an IME scheduler employee's sworn affidavit supplied competent evidence of nonappearance based on personal knowledge of office practices and policies when an assignor fails to attend. The provider did not specifically deny nonappearance or raise a triable issue concerning it, the mailing of the notices, or their reasonableness.

Reported in New York Official Reports at SMB Med., P.C. v State Farm Mut. Ins. Co. (2014 NY Slip Op 51853(U))

[*1]

SMB Med., P.C. v State Farm Mut. Ins. Co.

2014 NY Slip Op 51853(U) [46 Misc 3d 133(A)]

Decided on December 30, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570655/14

SMB Medical, P.C., a/a/o Alberto Martinez, Plaintiff-Respondent, –
against
State Farm Mutual Insurance Company, Defendant-Appellant.

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 3, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered July 3, 2013, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted in its entirety. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits in the amount of $662.89, by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, 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 central argument, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler attesting to the affiants’ personal knowledge of their 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]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 30, 2014

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: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the examining physician's affirmation and the IME scheduler employee's affidavit, based on personal knowledge of office practices, competently proved nonappearance, and the provider raised no triable issue.

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

Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 92 (this one included) are in the same category.

Proof of mailing

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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 his counsel, and the provider raised no triable issue on mailing.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (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.

Similar decisions

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.
S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))The insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices.
Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))The insurer established timely and proper mailing of IME notices and the assignor's nonappearance, without a triable rebuttal.
MDJ Med., P.C. v New York Cent. Mut. Ins. Co. (2013 NY Slip Op 51797(U))An assignor's failure to attend requested IMEs permits denial of all claims retroactively to the loss date, regardless of denial timing.
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.