August 6, 2012
Qi-Health Acupuncture Servs., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51494(U))
https://www.beynensonlaw.com/case-law/qi-health-acupuncture-servs-p-c-v-clarendon-natl-ins-co-2012-ny-slip-op51494u/
- Decided
- August 6, 2012
- Citation
- 2012 NY Slip Op 51494(U) · 36 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- No-show: coverage defense or precludable? · Proof of mailing (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 Qi-Health Acupuncture Servs., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51494(U))
| Qi-Health Acupuncture Servs., P.C. v Clarendon Natl. Ins. Co. |
| 2012 NY Slip Op 51494(U) [36 Misc 3d 141(A)] |
| Decided on August 6, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 ALIOTTA, JJ
2010-2949 Q C.
against
Clarendon National Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered September 28, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its motion for summary judgment dismissing the complaint.
The affidavit submitted by defendant in support of its motion for summary judgment failed to establish that defendant had timely denied the claims at issue (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]). Thus, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint, as defendant failed to establish that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
Accordingly, the order is affirmed.
[*2]Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: August 06, 2012
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer, having failed to establish that it timely denied the claims, did not show it was not precluded from asserting the assignor's IME nonappearance defense, so denial of its summary judgment motion was affirmed.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (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 proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer's affidavit failed to establish timely denial of the claims, so the IME no-show defense was precluded.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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.
Similar decisions
- Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2016 NY Slip Op 51381(U))The insurer's IME physicians failed to explain the basis for recalling the assignor's nonappearance approximately eight years later.
- 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.
- GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50912(U))The insurer failed to prove the assignor's IME nonappearance through someone with personal knowledge.
- Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))The insurer failed to establish timely mailing of denials supporting its defense that the assignor missed scheduled IMEs. The insurer sought summary judgment dismissing the first through fourth causes of action in an assigned no-fault benefits action.
- Jamhil Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51644(U))The insurer established timely mailing of IME notices and a denial based on the assignor's failure to appear for the scheduled IMEs. The president of the independent medical review service retained to schedule the examinations established timely mailing of the scheduling letters.