December 21, 2012
Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))
https://www.beynensonlaw.com/case-law/brooklyn-hgts-physical-therapy-p-c-v-new-york-cent-mut-fire-ins-co-2012-ny-slip-op-52406u/
- Decided
- December 21, 2012
- Citation
- 2012 NY Slip Op 52406(U) · 38 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
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 Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))
| Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2012 NY Slip Op 52406(U) [38 Misc 3d 130(A)] |
| Decided on December 21, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., WESTON and RIOS, JJ
2010-3341 Q C.
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 25, 2010, deemed from a judgment of the same court entered December 6, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 25, 2010 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,342.94.
ORDERED that the judgment is reversed, with $30 costs, the order entered October 25, 2010 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered October 25, 2010 which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment, finding that defendant’s denials were nullities because they had not been issued in duplicate (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]). A [*2]judgment awarding plaintiff the principal sum of $2,342.94 was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).
In support of its motion for summary judgment dismissing the complaint, defendant
submitted an affidavit by an employee of National Claim Evaluations, Inc. (NCEI), an
entity which had scheduled independent medical examinations (IMEs) of plaintiff’s
assignor on behalf of defendant. The affidavit established that the IME scheduling letters
had been timely mailed in accordance with NCEI’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]).
Defendant also submitted an affidavit by the chiropractor/acupuncturist who was to
perform the IMEs which established that plaintiff’s assignor had failed to appear for the
scheduled IMEs. An
affidavit executed by defendant’s litigation examiner demonstrated that denial of
claim forms, which denied the claims based upon the failure of plaintiff’s assignor to
appear for the IMEs, had been timely mailed to plaintiff, plaintiff’s assignor, and
plaintiff’s assignor’s attorney (see St. Vincent’s Hosp. of Richmond, 50 AD3d
1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).
Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (1) requires that, upon deciding to deny a claim, “the insurer shall notify the applicant or the authorized representative on the prescribed denial of claim form, in duplicate.” Plaintiff has offered no argument as to why defendant’s mailing of each denial of claim form to plaintiff, plaintiff’s assignor and plaintiff’s assignor’s attorney, respectively, does not satisfy this requirement. Accordingly, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since plaintiff failed to raise a triable issue of fact, defendant’s motion for summary judgment dismissing the complaint should have been granted.
Accordingly, the judgment is reversed, the order entered October 25, 2010 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012
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's no-show denials timely mailed and valid, rejecting the nullity finding for lack of duplicates because the provider offered no argument why mailing copies to the provider, assignor and attorney fell short.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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 insurer proved timely mailing of the IME scheduling letters by its scheduler's standard-practice affidavit and the assignor's nonappearance by the intended examining chiropractor's affidavit, entitling it to summary judgment.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (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 (rules on the question, but another ground decided the case)
Held the scheduler's standard-practice affidavit proved timely mailing of the IME letters and the litigation examiner's affidavit proved timely mailing of the denials.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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
- Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 51712(U))The insurer's proof of timely IME notices and denials and the assignor's nonappearance raised a triable issue on six causes of action.
- BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50880(U))The insurer proved the IME no-show defense for four causes of action, but its mailing affidavit omitted the third cause of action.
- 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.
- Park Slope Med. v Praetorian Ins. Co. (2011 NY Slip Op 52062(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations.