December 28, 2011

Shore Med. Diagnostic, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52343(U))

https://www.beynensonlaw.com/case-law/shore-med-diagnostic-p-c-v-praetorian-ins-co-2011-ny-slip-op52343u/

Court: Appellate Term, First Department
Decided: December 28, 2011
Citation: 2011 NY Slip Op 52343(U) · 34 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: IME no-show
Legal questions: No-show defense: insurer's proof · Proof of mailing (see the maps)

Cite as

Shore Med. Diagnostic, P.C. v Praetorian Ins. Co., 34 Misc 3d 131(A), 2011 NY Slip Op 52343(U) (App Term, 1st Dept 2011)

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 mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue. The Appellate Term, First Department, reversed denial of the insurer's summary judgment motion and dismissed the complaint for assigned no-fault benefits. The insurer's submissions established its prima facie entitlement to judgment. The provider's opposition raised no factual issue concerning either the reasonableness of the IME requests or the assignor's failure to attend the examinations.

Reported in New York Official Reports at Shore Med. Diagnostic, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52343(U))

[*1]

Shore Med. Diagnostic, P.C. v Praetorian Ins. Co.

2011 NY Slip Op 52343(U) [34 Misc 3d 131(A)]

Decided on December 28, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 28, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570519/11.

Shore Medical Diagnostic, P.C., a/a/o Gregory L. McClymont, Plaintiff-Respondent, – –
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Robert R. Reed, J.), entered February 25, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered February 25, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 28, 2011

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 prima facie that it mailed the IME notices to the assignor and that the assignor failed to appear, and the provider raised no triable issue on reasonableness or nonattendance.

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's submissions established prima facie that it mailed the IME notices to the assignor, and the provider raised no triable issue, supporting dismissal on the no-show defense.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.
Inwood Hill Med., P.C. v General Assur. Co. (2005 NY Slip Op 25437) FollowedAn injured person's failure to attend reasonably requested IMEs breaches a condition precedent to no-fault coverage.

Cited by

A label shows how the later decision treated this one.

Tian Shan Acupuncture PC v Global Liberty Ins. Co. (2019 NY Slip Op 50728(U)) FollowedThe insurer established timely IME requests and denials and the assignor's failure to appear for two IMEs. The Civil Court, Bronx County, granted the insurer summary judgment dismissing the complaint with prejudice, denied its remaining grounds as moot, and denied the provider's cross motion.

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.
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.
Park Slope Med. v Praetorian Ins. Co. (2011 NY Slip Op 52062(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.
S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))The insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices.
MDJ Med., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50895(U))The insurer proved timely mailing of IME and EUO notices and the assignor's repeated nonappearances.