November 29, 2013
Art of Healing Medicine, P.C. v Amica Mut. Ins. Co. (2013 NY Slip Op 52014(U))
https://www.beynensonlaw.com/case-law/art-of-healing-medicine-p-c-v-amica-mut-ins-co-2013-ny-slip-op52014u/
- Decided
- November 29, 2013
- Citation
- 2013 NY Slip Op 52014(U) · 41 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 Art of Healing Medicine, P.C. v Amica Mut. Ins. Co. (2013 NY Slip Op 52014(U))
| Art of Healing Medicine, P.C. v Amica Mut. Ins. Co. |
| 2013 NY Slip Op 52014(U) [41 Misc 3d 141(A)] |
| Decided on November 29, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and SOLOMON, JJ
2012-324 K C.
against
Amica Mutual Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered December 1, 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 on the condition that defendant, within 60 days of the date of this order and decision, serve upon plaintiff and file with the Clerk of the Civil Court, Kings County, an affidavit by Leigh Howie, identical to the affidavit by Leigh Howie submitted by defendant in support of its motion for summary judgment dismissing the complaint, accompanied by a certificate of conformity in compliance with CPLR 2309 (c) and Real Property Law § 299-a (1). In the event that defendant fails to duly serve and file such an affidavit, the order, insofar as appealed from, is affirmed, with $25 costs.
As is relevant to this appeal in an action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the [*2]ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of Crossland Medical Review Services, Inc. (Crossland), an entity which had scheduled the IMEs on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland’s standard office 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]). An affidavit by the chiropractor/acupuncturist who was to perform the IMEs established that plaintiff’s assignor had failed to appear for the scheduled IMEs. Defendant also submitted an affidavit by defendant’s claims representative, Leigh Howie, to demonstrate that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant appeals from so much of an order of the Civil Court as denied its motion.
The affidavit of Leigh Howie was executed out of state. Although it was accompanied by a document that purported to be a certificate of conformity, the certificate did not comply with Real Property Law § 299-a and, thus, the affidavit did not comply with CPLR 2309 (c) (see Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51629[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). While plaintiff timely objected to the form of defendant’s affidavit, a certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Cosentino v Molina, 36 Misc 3d 130[A], 2012 NY Slip Op 51282[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been conditionally granted (see Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]).
Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: November 29, 2013
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.
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
Held the insurer conditionally entitled to dismissal on its IME no-show defense once it files a conforming certificate for the affidavit showing its denials were timely mailed.
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.
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 scheduler's affidavit established mailing of the IME letters and the out-of-state denial-mailing affidavit could be cured nunc pro tunc with a proper certificate of conformity.
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 (rules on the question, but another ground decided the case)
Held the scheduler's affidavit proved timely mailing of the IME letters and the examiner's affidavit proved the assignor failed to appear for the scheduled IMEs.
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.
- Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51629(U)) FollowedThe insurer's out-of-state affidavits were inadmissible because their certificates of conformity were defective and the provider objected.
- Ave T MPC Corp. v Amica Mut. Ins. Co. (2010 NY Slip Op 52009(U)) FollowedThe provider's action was premature because the insurer had received no claim forms before suit commenced.
- Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50043(U)) FollowedAn out-of-state affidavit lacking the required certificate of conformity may receive nunc pro tunc effect once the certificate is obtained.
Cited by
A label shows how the later decision treated this one.
- Canarsie Chiropractic, P.C. v Auto Club Ins. Assn., AAA Mich. (2014 NY Slip Op 50377(U)) FollowedMichigan law permitted rescission for procurement fraud, but the insurer's summary judgment motion required a proper conformity certificate.
Similar decisions
- Healing Art Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50633(U))The insurer's scheduling-company affidavit established timely mailing of the IME notices under standard office mailing practices.
- Art of Healing Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50766(U))The insurer failed to obtain IME nonappearance dismissal, and the provider failed to establish its prima facie case for the disputed claim.
- Healing Art Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 50078(U))An out-of-state affidavit's missing certificate of conformity may be disregarded where no substantial right is prejudiced.
- Healing Art Acupuncture, P.C. v Maya Assur. Co. (2015 NY Slip Op 50387(U))The insurer failed to prove mailing of IME notices or that the provider's fee exceeded the workers' compensation fee schedule.
- Healing Art Acupuncture, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51465(U))The insurer proved its IME nonappearance defense to six claims but failed to establish timely denial of the first claim.