October 23, 2009
Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52208(U))
https://www.beynensonlaw.com/case-law/radiology-today-p-c-v-geico-ins-co-2009-ny-slip-op-52208u/
- Decided
- October 23, 2009
- Citation
- 2009 NY Slip Op 52208(U) · 25 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Proof of mailing · 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 Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52208(U))
| Radiology Today, P.C. v GEICO Ins. Co. |
| 2009 NY Slip Op 52208(U) [25 Misc 3d 133(A)] |
| Decided on October 23, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2008-1592 RI C.
against
GEICO Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered July 3, 2008. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). The Civil Court denied defendant’s unopposed motion on the ground that defendant had failed “to show [that] the IME notices were mailed to [the] claimant.”
In support of its motion, defendant submitted the affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently set forth the standard office practice and procedure for the generation and mailing of IME notices designed to ensure that said notices were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff’s assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s unopposed motion for summary judgment dismissing the complaint should have been granted.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 23, 2009
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 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
Held the IME scheduling service manager's affidavit sufficiently described a standard practice for generating and mailing IME notices, reversing a finding that mailing was not shown.
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.
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 its IME no-show defense: the scheduling service's affidavit showed proper mailing of the notices and the examiners' affidavits showed the assignor's nonappearance.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50230(U)) Contrasted (cf., but see)The insurer failed to establish timely mailing of its denial, leaving it unable to show that its medical-necessity defense was not precluded.
- 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.
- Tuncel v Progressive Cas. Ins. Co. (2008 NY Slip Op 52455(U))The insurer's chiropractor established that the assignor missed an IME at the office address stated in the scheduling letters.
Similar decisions
- 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.
- East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))The insurer proved mailing of the IME notices, timely mailing of the denials, and the assignor's failure to attend the scheduled IMEs. An employee of the scheduling company established mailing through its standard office practices and procedures.
- Delta Diagnostic Radiology, P.C. v Autoone Ins. Co. (2011 NY Slip Op 51839(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the no-fault policy.
- By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices.
- 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.