September 14, 2011

Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51677(U))

https://www.beynensonlaw.com/case-law/multi-specialty-pain-mgt-pc-v-new-york-cent-mut-fire-ins-co-2011-ny-slip-op51677u/

Court: Appellate Term, First Department
Decided: September 14, 2011
Citation: 2011 NY Slip Op 51677(U) · 32 Misc 3d 143(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)

Cite as

Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143(A), 2011 NY Slip Op 51677(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 proper 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, granted the motion, and dismissed the assigned no-fault complaint. The insurer's submissions established proper mailing of initial and follow-up notices to the assignor and the assignor's attorney. The provider failed to raise a factual issue concerning the reasonableness of the requests or the assignor's failure to attend. Its remaining arguments lacked merit.

Reported in New York Official Reports at Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51677(U))

[*1]

Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co.

2011 NY Slip Op 51677(U) [32 Misc 3d 143(A)]

Decided on September 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
570282/11.

Multi-Specialty Pain Management PC a/a/o Jurie Burke, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered November 10, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered November 10, 2010, 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 properly mailed initial and follow-up notices of independent medical examinations (IMEs) to the assignor and her attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; 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 IME requests or the assignor’s failure to attend (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).

We have examined plaintiff’s remaining arguments and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 14, 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

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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 properly mailed initial and follow-up IME notices to the assignor and her attorney and that she failed to appear, and the provider raised no triable issue.

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

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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 properly mailed the initial and follow-up IME notices to the assignor and her attorney, supporting dismissal on the IME 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) FollowedAn 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.

Similar decisions

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))The insurer established mailing of the IME notices and the assignor's nonappearance, while the provider raised no triable issue.
Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))The insurer established timely mailing of IME notices and the assignor's repeated nonappearance through affidavits based on personal knowledge.
Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))The insurer established timely and proper mailing of IME notices and the assignor's nonappearance, without a triable rebuttal.
MDJ Med., P.C. v New York Cent. Mut. Ins. Co. (2013 NY Slip Op 51797(U))An assignor's failure to attend requested IMEs permits denial of all claims retroactively to the loss date, regardless of denial timing.
City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50430(U))The insurer established timely, proper mailing of IME notices and the assignor's failure to appear.