May 24, 2010
Apollo Chiropractic Care, P.C. v Praetorian Ins. Co. (2010 NY Slip Op 50911(U))
https://www.beynensonlaw.com/case-law/apollo-chiropractic-care-p-c-v-praetorian-ins-co-2010-ny-slip-op50911u/
- Decided
- May 24, 2010
- Citation
- 2010 NY Slip Op 50911(U) · 27 Misc 3d 139(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Issues
- IME no-show Policy issues
- Legal questions
- No-show defense: insurer's proof (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 Apollo Chiropractic Care, P.C. v Praetorian Ins. Co. (2010 NY Slip Op 50911(U))
| Apollo Chiropractic Care, P.C. v Praetorian Ins. Co. |
| 2010 NY Slip Op 50911(U) [27 Misc 3d 139(A)] |
| Decided on May 24, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570743/09.
against
Praetorian Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered August 31, 2009, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Joan M. Kenney, J.), entered August 31, 2009, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
We note that, contrary to Civil Court’s determination, defendant was not required to produce
the applicable automobile insurance policy in order to establish that the mandatory personal
injury endorsement included an IME provision (see 11 NYCRR 65-1.1),since the policy
“shall be construed as if such provision[] [was] embodied therein” (Insurance Law §
5103[h]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
[*2]D
ecision Date: May 24, 2010
Legal questions
A question 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 showed two IME requests were duly mailed and the assignor missed both dates, and it did not need to produce the policy to prove an IME provision, which the law reads into it.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An 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.
- Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51597(U)) FollowedThe insurer proved mailing of the IME notices and the assignor's nonappearance, and the provider failed to raise a triable issue.
Similar decisions
- Arcadia Imaging, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51208(U))The insurer's affidavits established timely mailing of IME notices and the denial, as well as the assignor's IME nonappearances.
- 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.
- All About Rehabilitation & P.T., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51815(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy.
- Easy Care Acupuncture P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51524(U))An insurer may request IMEs before a provider submits claim forms under 11 NYCRR 65-1.1.
- Socrates Med. Health, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52174(U))The insurer established proper mailing of the IME notices and the assignor's failure to appear, and the provider raised no triable issue.