March 28, 2012
East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))
https://www.beynensonlaw.com/case-law/east-75th-st-diagnostic-imaging-p-c-v-new-york-cent-mut-fire-ins-co-2012-nyslip-op-50564u/
- Decided
- March 28, 2012
- Citation
- 2012 NY Slip Op 50564(U) · 35 Misc 3d 126(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 East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))
| East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2012 NY Slip Op 50564(U) [35 Misc 3d 126(A)] |
| Decided on March 28, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., MOLIA and IANNACCI, JJ
2011-127 N C.
against
New York Central Mutual Fire Ins. Co., Appellant.
Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated October 5, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint.
Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to coverage in that he did not appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of National Claims Evaluations, Inc. (NCEI), a company which defendant had hired to schedule the IMEs. The affidavit sufficiently established that the IME notices had been sent to plaintiff’s assignor 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]). Defendant also submitted affidavits and an affirmation by the doctors who were to perform the IMEs, which established that the assignor had failed to appear [*2]for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).
The appearance of the assignor at an 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 720). As plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal, the order of the District Court is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
LaCava, J.P., Molia and Iannacci, JJ., concur.
Decision Date: March 28, 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 established mailing of the IME notices and, through the examining doctors' affidavits and affirmation, the assignor's nonappearance, entitling it to summary judgment.
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 sufficiently established timely mailing of the denial forms as part of its successful IME 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 vendor's affidavit established the IME notices were sent under its standard practices and that the denials were timely mailed under the insurer's standard practices.
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.
- 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
- Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51725(U))The insurer proved timely mailing of IME notices and denials and the assignor's failure to attend the duly scheduled IMEs. An employee of the company retained to schedule the IMEs described standard office mailing practices establishing timely mailing of the scheduling letters.
- By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices.
- Elmont Rehab P.T., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50961(U))The insurer established the assignor's failure to attend duly scheduled IMEs and timely denials based on those nonappearances.
- J.C. Healing Touch Rehab, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50635(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.
- Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))The insurer established timely IME notices and the assignor's nonappearance, defeating the provider's claims.