October 11, 2011
Delta Diagnostic Radiology, P.C. v Autoone Ins. Co. (2011 NY Slip Op 51839(U))
https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-autoone-ins-co-2011-ny-slip-op51839u/
- Decided
- October 11, 2011
- Citation
- 2011 NY Slip Op 51839(U) · 33 Misc 3d 127(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
- Legal questions
- No-show defense: insurer's proof · Proof of mailing (see the maps)
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 Delta Diagnostic Radiology, P.C. v Autoone Ins. Co. (2011 NY Slip Op 51839(U))
| Delta Diagnostic Radiology, P.C. v Autoone Ins. Co. |
| 2011 NY Slip Op 51839(U) [33 Misc 3d 127(A)] |
| Decided on October 11, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and STEINHARDT, JJ
2009-2121 Q C.
against
AutoOne Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 17, 2009, deemed from a judgment of the same court entered September 28, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 17, 2009 order granting defendant’s motion for summary judgment and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs). Plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion. This appeal by plaintiff ensued. 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 an affidavit of a manager employed by the company retained by defendant to schedule the IMEs. The affidavit established that the IME scheduling letters had been timely mailed pursuant to the affiant’s employer’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 an affidavit of the chiropractor who was to perform the IMEs 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]). 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 at 721). Consequently, the judgment is affirmed.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 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.
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 the IME no-show defense through the scheduler's mailing affidavit and the chiropractor's affidavit that the assignor failed to appear.
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.
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 manager's affidavit established timely mailing of the IME letters under the employer's standard office 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.
Similar decisions
- Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51953(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy.
- Delta Diagnostic Radiology, P.C. v Auto One Ins. Co. (2015 NY Slip Op 51032(U))The insurer failed to prove IME nonappearances because its healthcare professionals' sworn statements did not demonstrate personal knowledge.
- Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51672(U))The insurer established timely mailing of IME notices and denials and the assignor's failure to appear for scheduled IMEs. In the provider's action for assigned no-fault benefits, the insurer proved that the scheduling letters and denial forms had been timely mailed and that the assignor had not attended the duly scheduled IMEs. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the nonappearances constituted failure to comply with a condition precedent to coverage.
- Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. (2016 NY Slip Op 50396(U))The insurer established that the assignor failed to appear for duly scheduled IMEs, and the provider raised no triable issue of fact.
- 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.