December 16, 2011
Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))
https://www.beynensonlaw.com/case-law/neomy-med-p-c-v-new-york-cent-mut-fire-ins-co-2011-ny-slip-op52279u/
- Decided
- December 16, 2011
- Citation
- 2011 NY Slip Op 52279(U) · 34 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))
| Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2011 NY Slip Op 52279(U) [34 Misc 3d 126(A)] |
| Decided on December 16, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-1097 K C.
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered March 30, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is denied and defendant’s cross 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 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.
In support of its cross motion for summary judgment, defendant submitted an affidavit of an employee of Crossland Medical Services, P.C. (Crossland), the entity which had scheduled the independent medical examinations (IMEs) involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland’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]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the denial of claim forms, which denied the claims based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit from its examining chiropractor/acupuncturist, who stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as plaintiff submitted only an affirmation from its counsel, which affirmation failed to raise a triable issue of [*2]fact, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of the foregoing, we reach no other issue.
Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011
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 letters and, through the examining chiropractor's affidavit, the assignor's nonappearance; counsel's affirmation raised no triable issue.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (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 nonappearance, had been timely mailed, as part of its prima facie no-show defense.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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 timely mailing of IME letters and the litigation examiner's affidavit established timely mailing of the denials under standard practices.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
Cited by
A label shows how the later decision treated this one.
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51653(U)) FollowedThe insurer proved timely IME notices and denials and the assignor's nonappearance, while the provider failed to raise a factual issue.
Similar decisions
- VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51074(U))The insurer proved timely mailing of IME notices and a denial, as well as the assignor's failure to attend the scheduled IMEs. An employee of the outside scheduling entity established mailing of the notices through standard office practices and procedures.
- Tri-Mount Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50335(U))The insurer proved mailing of IME notices and timely denials and the assignor's nonappearance; 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.
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement.
- Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51955(U))The insurer established the assignor's IME nonappearance and timely mailing of scheduling letters and denials; opposition raised no triable issue.