November 4, 2011
Park Slope Med. v Praetorian Ins. Co. (2011 NY Slip Op 52062(U))
https://www.beynensonlaw.com/case-law/park-slope-med-v-praetorian-ins-co-2011-ny-slip-op-52062u/
- Decided
- November 4, 2011
- Citation
- 2011 NY Slip Op 52062(U) · 33 Misc 3d 137(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Park Slope Med. v Praetorian Ins. Co. (2011 NY Slip Op 52062(U))
| Park Slope Med. v Praetorian Ins. Co. |
| 2011 NY Slip Op 52062(U) [33 Misc 3d 137(A)] |
| Decided on November 4, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., WESTON and RIOS, JJ
2010-582 Q C.
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered December 24, 2009, deemed from a judgment of the same court entered January 27, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 24, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,937.25.
ORDERED that the judgment is reversed, without costs, the order entered December 24, 2009 is vacated, 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, the Civil Court, by order entered December 24, 2009, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered. We deem defendant’s appeal from the order to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).
In support of its cross motion, defendant submitted an affidavit of the president of Media
Referral Inc., the independent medical review service retained by defendant to schedule
independent medical examinations (IMEs), which affidavit sufficiently established that the IME
scheduling letters had been timely mailed in accordance with her company’s standard office
practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins.
Co., [*2]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 an affidavit of the chiropractor who was retained to perform the IMEs, which was
sufficient to establish that plaintiff’s assignor 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 division employee demonstrated that after defendant had received requested
verification, the denial of claim forms, which denied plaintiff’s claims based
upon plaintiff’s assignor’s nonappearance at 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). Since
an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the
policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance
Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s
claims based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus,
was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045
[2d Dept 2009]; but see Unitrin
Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept
2011]).
Accordingly, the judgment is reversed, the order is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 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 timely mailing of the IME scheduling letters and, through the chiropractor's affidavit, the assignor's 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. One decision in other departments that cites or is cited by this one is on the full map.
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 not precluded because it timely mailed denials based on the IME nonappearance after receiving requested verification, applying the preclusion rule.
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. One decision in other departments that cites or is cited by this one is on 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 scheduling service president's affidavit established timely mailing of the IME letters and the claims employee's affidavit established timely mailing of the denials under 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.
- 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.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Similar decisions
- Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51862(U))The insurer's proof established timely IME notices and denials and the assignor's nonappearances, warranting summary judgment.
- Cortland Med. Supply, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50394(U))The insurer established the assignor's failure to attend duly scheduled IMEs and timely mailing of the requests and denials.
- 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.
- New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 50780(U))The insurer established timely mailing of chiropractic IME notices and denials and the assignor's failure to attend the scheduled IMEs. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., that failure violated a condition precedent to coverage and entitled the insurer to summary judgment dismissing the assigned no-fault claims.
- All Star Wellness Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51630(U))The insurer proved IME nonappearance as to two bills and lack of medical necessity as to another, without a triable issue in opposition.