April 25, 2012
Axis Chiropractic, PLLC v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50753(U))
https://www.beynensonlaw.com/case-law/axis-chiropractic-pllc-v-clarendon-natl-ins-co-2012-ny-slip-op50753u/
- Decided
- April 25, 2012
- Citation
- 2012 NY Slip Op 50753(U) · 35 Misc 3d 133(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 Axis Chiropractic, PLLC v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50753(U))
| Axis Chiropractic, PLLC v Clarendon Natl. Ins. Co. |
| 2012 NY Slip Op 50753(U) [35 Misc 3d 133(A)] |
| Decided on April 25, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2010-1849 K C.
against
Clarendon National Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 10, 2010, deemed from a judgment of the same court entered May 25, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 10, 2010 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed, with $10 costs. [*2]
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered March 10, 2010, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
In support of its motion, defendant submitted affidavits from the president of the company retained by defendant to schedule independent medical examinations (IMEs). The affidavits established that the IME scheduling letters had been timely mailed pursuant to the company’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 affirmations from the orthopedist who was to perform the IMEs, which established that plaintiff’s assignors had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied plaintiff’s claims based on plaintiff’s assignors’ nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), defendant’s motion for summary judgment dismissing the complaint was properly granted. Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 25, 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.
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 and, through the orthopedist's affirmations, the assignors' nonappearance at the duly scheduled IMEs.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the insurer showed its denial forms, based on the IME nonappearances, had been timely mailed, as part of its successful no-show defense.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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 scheduling company president's affidavits established timely mailing of IME letters under standard practices, and the claims examiner's affidavit established timely mailing of the denials.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
- 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
- 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.
- Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51758(U))The insurer established timely IME requests and denials and the assignor's failure to attend the scheduled examinations.
- Triangle R, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51854(U))The insurer established the assignor's IME nonappearances and timely mailing of notices and the denial, warranting dismissal.
- Proscan Imaging Buffalo v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51855(U))The insurer's affidavits established timely IME notices and denials and the assignor's nonappearances, requiring dismissal.
- Parkway Imaging & Diagnostic, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51853(U))The insurer's IME doctor's affirmation established the assignor's nonappearances, and the provider failed to raise a triable issue.