March 27, 2013
City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50430(U))
https://www.beynensonlaw.com/case-law/city-care-acupuncture-pc-v-new-york-cent-mut-fire-ins-co-2013-nyslip-op-50430u/
- Decided
- March 27, 2013
- Citation
- 2013 NY Slip Op 50430(U) · 39 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- 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 City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50430(U))
| City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. |
| 2013 NY Slip Op 50430(U) [39 Misc 3d 128(A)] |
| Decided on March 27, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570962/12.
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.
Defendant, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated August 30, 2012, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Raul Cruz, J.), dated August 30, 2012, insofar as appealed from, reversed, with $10 costs, motion granted in toto and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the no-fault claims at issue by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not 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 at 560). The assignor’s “denial of receipt, standing alone, is insufficient” (Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 27, 2013
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 insurer established timely and proper mailing of the IME notices, and the assignor's denial of receipt, standing alone, was insufficient to rebut it.
Of the 161 decisions on this question in the First Department courts and the Court of Appeals, 110 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on 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
Granted the insurer summary judgment because it showed proper mailing of the IME notices and the assignor's nonappearance, and the provider raised no issue on nonappearance, mailing or reasonableness of the notices.
Of the 165 decisions on this question in the First Department courts and the Court of Appeals, 94 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) Contrasted (cf., but see)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Cited by
A label shows how the later decision treated this one.
- Tian Shan Acupuncture PC v Global Liberty Ins. Co. (2019 NY Slip Op 50728(U)) FollowedThe insurer established timely IME requests and denials and the assignor's failure to appear for two IMEs. The Civil Court, Bronx County, granted the insurer summary judgment dismissing the complaint with prejudice, denied its remaining grounds as moot, and denied the provider's cross motion.
Similar decisions
- NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
- 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.
- 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.
- 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.
- Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.