July 12, 2012
Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51337(U))
https://www.beynensonlaw.com/case-law/brooklyn-hgts-physical-therapy-p-c-v-new-york-cent-mut-fire-ins-co-2012-nyslip-op-51337u/
- Decided
- July 12, 2012
- Citation
- 2012 NY Slip Op 51337(U) · 36 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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 51337(U))
| Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2012 NY Slip Op 51337(U) [36 Misc 3d 134(A)] |
| Decided on July 12, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : WESTON, J.P., PESCE and ALIOTTA, JJ
2010-3204 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.), dated October 22, 2010, deemed from a judgment of the same court entered November 15, 2010 (see CPLR 5512 [a]). The judgment, entered pursuant to the October 22, 2010 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the sum of $3,552.99.
ORDERED that the judgment 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 and granted plaintiff’s cross motion for summary judgment. After judgment was entered, defendant appealed from the order. The appeal is deemed to be from the judgment (see CPLR 5512 [a]). [*2]
Insofar as is relevant to this appeal, the Civil Court found that defendant had failed to submit sufficient evidence to establish mailing of timely and proper denial of claim forms in order to preserve its proffered defenses. We agree.
While defendant’s initial IME scheduling letter was timely mailed, the record reflects that, after plaintiff’s assignor had failed to appear for the IME, the follow-up IME scheduling letter was not timely mailed (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; § 65-3.8 [j]). As a result, defendant failed to toll the 30-day statutory time period in which it had to pay or deny the claims (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [a]; Insurance Law 5106 [a]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2d Dept 2009]). Consequently, defendant’s denial of claim forms were untimely and defendant was precluded from offering its defense that a policy provision had been breached due to the assignor’s failure to appear for IMEs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]) as well as its defense that the fees sought were improper.
Accordingly, the judgment is affirmed.
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: July 12, 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 precluded from its IME no-show defense because its untimely follow-up IME letter did not toll the 30-day period, making its denials untimely.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held the IME no-show defense failed because the follow-up IME letter was not mailed within the regulatory time after the first nonappearance, so it did not toll the time to deny.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (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.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
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.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50954(U))An IME nonappearance defense is subject to preclusion if the insurer's denials are untimely.
- Comprehensive Care Physical Therapy, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50848(U))The insurer failed to establish timely mailing of denials supporting its IME nonappearance and fee schedule defenses.
- Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))The insurer established mailing of the IME notices and the assignor's nonappearance, while the provider raised no triable issue.
- Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U))The insurer established timely mailing of IME notices and denials and the assignor's failure to attend the scheduled examinations.