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July 28, 2014

By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))

https://www.beynensonlaw.com/case-law/by-md-p-c-v-ny-cent-mut-fire-ins-co-2014-ny-slip-op51232u/

Court
Appellate Term, Second Department
Decided
July 28, 2014
Citation
2014 NY Slip Op 51232(U) · 44 Misc 3d 136(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
IME no-show Timeliness and preclusion
Legal questions
Proof of mailing · No-show defense: insurer's proof · No-show: coverage defense or precludable? (see the maps)
Cite as
By MD, P.C. v NY Cent. Mut. Fire Ins. Co., 44 Misc 3d 136(A), 2014 NY Slip Op 51232(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices. Civil Court denied the insurer's summary judgment motion because it found a factual issue concerning receipt. The scheduling company's employee established timely mailing through standard office practices, and the healthcare professional who was to conduct the IMEs established the assignor's nonappearances. The claims examiner also sufficiently described the insurer's practices for mailing denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, appearance at a duly scheduled IME is a condition precedent to policy liability. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))

[*1]
By MD, P.C. v NY Cent. Mut. Fire Ins. Co.
2014 NY Slip Op 51232(U) [44 Misc 3d 136(A)]
Decided on July 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2014

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


PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2012-1066 K C
By MD, P.C. as Assignee of AARON HOPE, Respondent, –

against

NY Central Mutual Fire Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered April 16, 2012. 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 moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). The Civil Court denied the motion, finding that plaintiff had raised a triable issue of fact as to whether plaintiff’s assignor had received written notice of the IMEs.

In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed 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]). The affidavit submitted by plaintiff was insufficient to rebut the presumption of receipt (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists 2005]). Defendant also submitted affidavits by the healthcare professional who was to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Finally, an affidavit executed by defendant’s claims examiner sufficiently described the standard mailing practices and procedures for denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). In view of the foregoing, and since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, [*2]P.C., 35 AD3d at 722), defendant’s motion for summary judgment dismissing the complaint should have been granted.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: July 28, 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.

Proof of mailing

Open the full map

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

Reversing a finding of a triable issue on receipt, held the IME scheduler's standard-practice affidavit established mailing and the provider's affidavit was insufficient to rebut the presumption of receipt.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 37
  • Appellate TermApp Term 1,214
  • Trial courtsTrial 148
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2023, Appellate Division: 1 decision (1 Insurer proved mailing)2020, Appellate Division: 1 decision (1 Insurer proved mailing)2016, Appellate Division: 3 decisions (1 Insurer proved mailing, 2 Insurer failed to prove)2015, Appellate Division: 2 decisions (2 Insurer failed to prove)2014, Appellate Division: 3 decisions (2 Insurer proved mailing, 1 Provider proved mailing)2013, Appellate Division: 1 decision (1 Provider proved mailing)2012, Appellate Division: 1 decision (1 Provider proved mailing)2011, Appellate Division: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2010, Appellate Division: 1 decision (1 Provider proved mailing)2008, Appellate Division: 2 decisions (2 Insurer proved mailing)2007, Appellate Division: 7 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 3 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2006, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Provider failed to prove)2005, Appellate Division: 2 decisions (2 Insurer failed to prove)2004, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Triable issue on mailing)2026, Appellate Division: 1 decision (1 Insurer failed to prove)2023, Appellate Term: 6 decisions (5 Insurer proved mailing, 1 Triable issue on mailing)2022, Appellate Term: 44 decisions (32 Insurer proved mailing, 3 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 5 Triable issue on mailing)2021, Appellate Term: 21 decisions (13 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing, 1 Mixed rulings)2020, Appellate Term: 31 decisions (24 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing)2019, Appellate Term: 81 decisions (59 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 12 Triable issue on mailing, 1 Mixed rulings)2018, Appellate Term: 74 decisions (46 Insurer proved mailing, 16 Insurer failed to prove, 1 Provider failed to prove, 10 Triable issue on mailing, 1 Mixed rulings)2017, Appellate Term: 115 decisions (60 Insurer proved mailing, 26 Insurer failed to prove, 4 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 2 Mixed rulings)2016, Appellate Term: 103 decisions (44 Insurer proved mailing, 30 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 3 Mixed rulings)2015, Appellate Term: 97 decisions (66 Insurer proved mailing, 10 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 9 Triable issue on mailing, 8 Mixed rulings)2014, Appellate Term: 68 decisions (55 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 3 Triable issue on mailing, 4 Mixed rulings)2013, Appellate Term: 73 decisions (62 Insurer proved mailing, 6 Insurer failed to prove, 1 Provider proved mailing, 1 Provider failed to prove, 3 Mixed rulings)2012, Appellate Term: 110 decisions (87 Insurer proved mailing, 14 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 1 Triable issue on mailing, 4 Mixed rulings)2011, Appellate Term: 69 decisions (56 Insurer proved mailing, 8 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing, 2 Mixed rulings)2010, Appellate Term: 78 decisions (67 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 2 Mixed rulings)2009, Appellate Term: 53 decisions (29 Insurer proved mailing, 11 Insurer failed to prove, 6 Provider proved mailing, 3 Provider failed to prove, 4 Mixed rulings)2008, Appellate Term: 28 decisions (13 Insurer proved mailing, 11 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Appellate Term: 30 decisions (9 Insurer proved mailing, 16 Insurer failed to prove, 3 Provider proved mailing, 2 Mixed rulings)2006, Appellate Term: 75 decisions (6 Insurer proved mailing, 19 Insurer failed to prove, 21 Provider proved mailing, 21 Provider failed to prove, 8 Mixed rulings)2005, Appellate Term: 27 decisions (2 Insurer proved mailing, 14 Insurer failed to prove, 7 Provider proved mailing, 3 Provider failed to prove, 1 Mixed rulings)2004, Appellate Term: 12 decisions (1 Insurer proved mailing, 4 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 1 Mixed rulings)2003, Appellate Term: 3 decisions (3 Provider proved mailing)2024, Appellate Term: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2025, Appellate Term: 4 decisions (3 Insurer proved mailing, 1 Provider proved mailing)2026, Appellate Term: 8 decisions (3 Insurer proved mailing, 3 Insurer failed to prove, 2 Triable issue on mailing)2023, Trial courts: 4 decisions (2 Insurer proved mailing, 2 Provider proved mailing)2022, Trial courts: 5 decisions (2 Insurer proved mailing, 2 Provider proved mailing, 1 Mixed rulings)2021, Trial courts: 18 decisions (12 Insurer proved mailing, 1 Provider proved mailing, 3 Provider failed to prove, 2 Mixed rulings)2020, Trial courts: 5 decisions (1 Insurer proved mailing, 2 Provider proved mailing, 2 Mixed rulings)2019, Trial courts: 4 decisions (3 Insurer failed to prove, 1 Triable issue on mailing)2018, Trial courts: 1 decision (1 Insurer proved mailing)2017, Trial courts: 7 decisions (5 Insurer proved mailing, 2 Insurer failed to prove)2016, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Triable issue on mailing)2015, Trial courts: 3 decisions (3 Provider proved mailing)2013, Trial courts: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2012, Trial courts: 10 decisions (5 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing)2011, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2010, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2009, Trial courts: 9 decisions (4 Insurer proved mailing, 2 Insurer failed to prove, 3 Provider proved mailing)2008, Trial courts: 13 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 7 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Trial courts: 8 decisions (1 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing)2006, Trial courts: 7 decisions (1 Insurer proved mailing, 6 Insurer failed to prove)2005, Trial courts: 15 decisions (2 Insurer proved mailing, 8 Insurer failed to prove, 1 Provider proved mailing, 4 Provider failed to prove)2004, Trial courts: 10 decisions (5 Insurer failed to prove, 2 Provider proved mailing, 3 Provider failed to prove)2024, Trial courts: 2 decisions (1 Insurer failed to prove, 1 Provider failed to prove)2025, Trial courts: 2 decisions (2 Insurer proved mailing)2026, Trial courts: 7 decisions (3 Insurer proved mailing, 1 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing)This decision
20052010201520202025
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 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.

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

Held the insurer proved timely mailing of the IME letters and the assignor's nonappearance, and the provider's affidavit did not raise a triable issue as to the assignor's receipt of notice.

  • Appellate DivisionApp Div 10
  • Appellate TermApp Term 759
  • Trial courtsTrial 89
2023, Appellate Division: 1 decision (1 Defense proved)2022, Appellate Division: 1 decision (1 Requests not compliant)2020, Appellate Division: 1 decision (1 Defense proved)2016, Appellate Division: 2 decisions (2 Mailing not proved)2015, Appellate Division: 1 decision (1 Mailing not proved)2014, Appellate Division: 2 decisions (2 Defense proved)2006, Appellate Division: 1 decision (1 Mailing not proved)2004, Appellate Division: 1 decision (1 No-show excused)2023, Appellate Term: 5 decisions (5 Defense proved)2022, Appellate Term: 45 decisions (37 Defense proved, 3 Mailing not proved, 3 Nonappearance not proved, 2 Requests not compliant)2021, Appellate Term: 22 decisions (16 Defense proved, 3 Mailing not proved, 1 Requests not compliant, 2 Triable issue)2020, Appellate Term: 30 decisions (26 Defense proved, 2 Mailing not proved, 2 Requests not compliant)2019, Appellate Term: 69 decisions (53 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 13 Requests not compliant, 1 Triable issue)2018, Appellate Term: 52 decisions (43 Defense proved, 3 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant)2017, Appellate Term: 88 decisions (52 Defense proved, 16 Mailing not proved, 6 Nonappearance not proved, 11 Requests not compliant, 1 Triable issue, 2 No-show excused)2016, Appellate Term: 75 decisions (34 Defense proved, 15 Mailing not proved, 22 Nonappearance not proved, 3 Requests not compliant, 1 Triable issue)2015, Appellate Term: 77 decisions (48 Defense proved, 6 Mailing not proved, 14 Nonappearance not proved, 5 Requests not compliant, 4 Triable issue)2014, Appellate Term: 46 decisions (35 Defense proved, 5 Mailing not proved, 4 Nonappearance not proved, 2 Requests not compliant)2013, Appellate Term: 44 decisions (29 Defense proved, 6 Mailing not proved, 7 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Appellate Term: 51 decisions (37 Defense proved, 5 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant, 2 Triable issue, 1 No-show excused)2011, Appellate Term: 33 decisions (27 Defense proved, 3 Mailing not proved, 2 Nonappearance not proved, 1 Triable issue)2010, Appellate Term: 14 decisions (9 Defense proved, 1 Mailing not proved, 2 Nonappearance not proved, 2 Requests not compliant)2009, Appellate Term: 15 decisions (6 Defense proved, 6 Mailing not proved, 2 Nonappearance not proved, 1 Requests not compliant)2008, Appellate Term: 7 decisions (2 Defense proved, 1 Mailing not proved, 4 Nonappearance not proved)2007, Appellate Term: 15 decisions (1 Defense proved, 6 Mailing not proved, 5 Nonappearance not proved, 3 Triable issue)2006, Appellate Term: 20 decisions (1 Defense proved, 9 Mailing not proved, 6 Requests not compliant, 4 Triable issue)2005, Appellate Term: 19 decisions (3 Defense proved, 10 Mailing not proved, 5 Requests not compliant, 1 No-show excused)2004, Appellate Term: 15 decisions (3 Defense proved, 1 Mailing not proved, 10 Requests not compliant, 1 Triable issue)2024, Appellate Term: 6 decisions (6 Defense proved)2025, Appellate Term: 7 decisions (7 Defense proved)2026, Appellate Term: 3 decisions (3 Defense proved)2003, Appellate Term: 1 decision (1 Requests not compliant)2023, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 2 Triable issue)2022, Trial courts: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2021, Trial courts: 10 decisions (8 Defense proved, 2 Requests not compliant)2020, Trial courts: 3 decisions (2 Mailing not proved, 1 Requests not compliant)2019, Trial courts: 5 decisions (3 Mailing not proved, 2 Requests not compliant)2018, Trial courts: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2017, Trial courts: 6 decisions (2 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 Triable issue)2016, Trial courts: 4 decisions (3 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 1 Triable issue, 1 No-show excused)2013, Trial courts: 7 decisions (3 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 No-show excused)2012, Trial courts: 5 decisions (2 Defense proved, 3 Requests not compliant)2010, Trial courts: 3 decisions (2 Defense proved, 1 Requests not compliant)2009, Trial courts: 2 decisions (2 Defense proved)2008, Trial courts: 4 decisions (2 Defense proved, 2 Requests not compliant)2007, Trial courts: 1 decision (1 Mailing not proved)2006, Trial courts: 2 decisions (2 Mailing not proved)2005, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2004, Trial courts: 7 decisions (1 Defense proved, 2 Mailing not proved, 4 Requests not compliant)2024, Trial courts: 2 decisions (1 Mailing not proved, 1 Requests not compliant)2025, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2026, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2011, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
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, 527 (this one included) are in the same category.

No-show: coverage defense or precludable?

Open the full map

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 sufficiently described standard mailing practices for the denial forms, supporting the insurer's timely denial on the IME no-show ground.

  • Appellate DivisionApp Div 7
  • Appellate TermApp Term 454
  • Trial courtsTrial 47
2023, Appellate Division: 1 decision (1 Precludable: denial timely)2022, Appellate Division: 1 decision (1 Precludable: denial lacking)2020, Appellate Division: 1 decision (1 Precludable: denial timely)2015, Appellate Division: 1 decision (1 Precludable: denial lacking)2014, Appellate Division: 2 decisions (2 Precludable: denial timely)2009, Appellate Division: 1 decision (1 Precludable: denial lacking)2023, Appellate Term: 4 decisions (1 Precludable: denial lacking, 3 Precludable: denial timely)2022, Appellate Term: 32 decisions (12 Precludable: denial lacking, 20 Precludable: denial timely)2021, Appellate Term: 12 decisions (4 Precludable: denial lacking, 8 Precludable: denial timely)2020, Appellate Term: 25 decisions (4 Precludable: denial lacking, 21 Precludable: denial timely)2019, Appellate Term: 38 decisions (5 Precludable: denial lacking, 33 Precludable: denial timely)2018, Appellate Term: 31 decisions (11 Precludable: denial lacking, 20 Precludable: denial timely)2017, Appellate Term: 50 decisions (13 Precludable: denial lacking, 37 Precludable: denial timely)2016, Appellate Term: 35 decisions (15 Precludable: denial lacking, 20 Precludable: denial timely)2015, Appellate Term: 45 decisions (5 Precludable: denial lacking, 40 Precludable: denial timely)2014, Appellate Term: 34 decisions (14 Precludable: denial lacking, 20 Precludable: denial timely)2013, Appellate Term: 32 decisions (7 Precludable: denial lacking, 25 Precludable: denial timely)2012, Appellate Term: 42 decisions (15 Precludable: denial lacking, 27 Precludable: denial timely)2011, Appellate Term: 24 decisions (5 Precludable: denial lacking, 19 Precludable: denial timely)2010, Appellate Term: 8 decisions (5 Precludable: denial lacking, 3 Precludable: denial timely)2009, Appellate Term: 3 decisions (3 Precludable: denial lacking)2007, Appellate Term: 2 decisions (2 Precludable: denial lacking)2006, Appellate Term: 9 decisions (7 Precludable: denial lacking, 2 Precludable: denial timely)2005, Appellate Term: 10 decisions (9 Precludable: denial lacking, 1 Precludable: denial timely)2004, Appellate Term: 4 decisions (4 Precludable: denial lacking)2024, Appellate Term: 5 decisions (1 Precludable: denial lacking, 4 Precludable: denial timely)2025, Appellate Term: 5 decisions (2 Precludable: denial lacking, 3 Precludable: denial timely)2026, Appellate Term: 3 decisions (3 Precludable: denial timely)2003, Appellate Term: 1 decision (1 Precludable: denial lacking)2023, Trial courts: 1 decision (1 Precludable: denial timely)2022, Trial courts: 3 decisions (1 Precludable: denial lacking, 2 Precludable: denial timely)2021, Trial courts: 8 decisions (2 Precludable: denial lacking, 6 Precludable: denial timely)2020, Trial courts: 3 decisions (2 Precludable: denial lacking, 1 Precludable: denial timely)2019, Trial courts: 5 decisions (5 Precludable: denial lacking)2018, Trial courts: 1 decision (1 Precludable: denial timely)2017, Trial courts: 2 decisions (2 Precludable: denial timely)2016, Trial courts: 3 decisions (1 Precludable: denial lacking, 2 Precludable: denial timely)2014, Trial courts: 3 decisions (3 Precludable: denial timely)2013, Trial courts: 3 decisions (2 Coverage defense, 1 Precludable: denial timely)2012, Trial courts: 1 decision (1 Precludable: denial timely)2011, Trial courts: 2 decisions (2 Coverage defense)2009, Trial courts: 2 decisions (2 Precludable: denial timely)2008, Trial courts: 1 decision (1 Precludable: denial lacking)2006, Trial courts: 1 decision (1 Precludable: denial lacking)2005, Trial courts: 1 decision (1 Precludable: denial lacking)2004, Trial courts: 3 decisions (3 Precludable: denial lacking)2025, Trial courts: 2 decisions (2 Precludable: denial timely)2026, Trial courts: 1 decision (1 Precludable: denial timely)2015, Trial courts: 1 decision (1 Precludable: denial lacking)This decision
20052010201520202025
Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decision

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.
  • Top Choice Med., P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52063(U))The provider proved two claims remained unpaid and undenied for 30 days, and the insurer's bare denial of receipt raised no triable issue.
  • A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp. (2005 NY Slip Op 50088(U))MVAIC's 30-day period to pay or deny begins upon receipt of proof of claim, rather than after it qualifies an eligible insured.
  • 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

  • Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))The insurer established timely IME notices and the assignor's nonappearance, defeating the provider's claims.
  • East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))The insurer proved mailing of the IME notices, timely mailing of the denials, and the assignor's failure to attend the scheduled IMEs. An employee of the scheduling company established mailing through its standard office practices and procedures.
  • Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51725(U))The insurer proved timely mailing of IME notices and denials and the assignor's failure to attend the duly scheduled IMEs. An employee of the company retained to schedule the IMEs described standard office mailing practices establishing timely mailing of the scheduling letters.
  • 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.
  • Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51758(U))The insurer established timely IME requests and denials and the assignor's failure to attend the scheduled examinations.
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