May 10, 2012

Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))

https://www.beynensonlaw.com/case-law/continental-med-p-c-v-new-york-cent-mut-fire-ins-co-2012-ny-slip-op50844u/

Court: Appellate Term, First Department
Decided: May 10, 2012
Citation: 2012 NY Slip Op 50844(U) · 35 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show
Legal questions: No-show defense: insurer's proof · Proof of mailing (see the maps)

Cite as

Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co., 35 Misc 3d 138(A), 2012 NY Slip Op 50844(U) (App Term, 1st Dept 2012)

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.

The insurer established timely and proper mailing of IME notices and the assignor's nonappearance, without a triable rebuttal. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion and dismissed the provider's action for assigned first-party no-fault benefits. The insurer's proof established prima facie entitlement to dismissal under Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC. In opposition, the provider did not specifically deny the assignor's failure to appear or otherwise raise a triable issue concerning nonappearance.

Reported in New York Official Reports at Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))

[*1]

Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 50844(U) [35 Misc 3d 138(A)]

Decided on May 10, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570854/11.

Continental Medical, P.C. a/a/o Nelson Weisberg, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 1, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 1, 2011, insofar as appealed from, reversed, with $10 costs, motion granted 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 action for first-party no-fault benefits 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 specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: May 10, 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.

No-show defense: insurer's proof

Open 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

Held the insurer proved timely and proper mailing of the IME notices and the assignor's nonappearance, and the provider did not specifically deny the nonappearance or otherwise raise a triable issue.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 92 (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.

Proof of mailing

Open the full map

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 insurer established that it timely and properly mailed the IME notices to the assignor, supporting summary judgment on its no-show defense.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (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.

Similar decisions

Coast Med. Diagnostic, PC v Praetorian Ins. Co. (2013 NY Slip Op 50381(U))The insurer established timely and proper mailing of IME notices and the assignor's failure to appear, warranting summary judgment.
MDJ Med., P.C. v New York Cent. Mut. Ins. Co. (2013 NY Slip Op 51797(U))An assignor's failure to attend requested IMEs permits denial of all claims retroactively to the loss date, regardless of denial timing.
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.
Seacoast Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52354(U))The insurer established timely and proper IME and EUO notices and the assignor's nonappearance, warranting dismissal.
Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51677(U))The insurer established proper mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue.