August 8, 2014
Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51256(U))
https://www.beynensonlaw.com/case-law/quality-psychological-servs-p-c-v-new-york-cent-mut-fire-ins-co-2014ny-slip-op-51256u/
- Decided
- August 8, 2014
- Citation
- 2014 NY Slip Op 51256(U) · 44 Misc 3d 138(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51256(U))
| Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2014 NY Slip Op 51256(U) [44 Misc 3d 138(A)] |
| Decided on August 8, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2011-2131 K C
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 27, 2011. 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 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 so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the IME scheduling letters had been timely mailed to plaintiff’s assignor in accordance with that office’s standard mailing practices and procedures (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, among other things, an affidavit by the chiropractor who was to perform the chiropractic IMEs, which was sufficient to establish 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 form, which denied plaintiff’s claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant established its entitlement to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: August 08, 2014
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 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 IME scheduler's standard-mailing-practice affidavit established timely mailing of the scheduling letters to the assignor, and the claims examiner's affidavit established timely mailing of the no-show denial.
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 IME scheduler's affidavit proved timely mailing of the IME letters and the chiropractor's affidavit proved the assignor's nonappearance, entitling the insurer to dismissal.
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 the denial based on the IME nonappearance was timely mailed, completing the insurer's 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.
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)The 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)An 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
- Quality Psychological Servs., P.C. v Auto One Ins. Co. (2011 NY Slip Op 52281(U))The insurer's IME nonappearance defense was precluded because its affidavit failed to establish timely mailing of the denial.
- J.C. Healing Touch Rehab, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50635(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.
- 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.
- Quality Psychological Servs., P.C. v MVAIC (2012 NY Slip Op 50757(U))MVAIC established timely mailing of the IME notices and denials and the assignor's failure to attend the scheduled IMEs. MVAIC submitted an affidavit from the chiropractor/acupuncturist retained to conduct the IMEs, which sufficiently established nonappearance.
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))The insurer's affidavits established timely mailing of the IME notices and denials and the assignor's failure to appear.