November 13, 2020
21st Century Pharm., Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51377(U))
https://www.beynensonlaw.com/case-law/21st-century-pharm-inc-v-global-liberty-ins-co-of-n-y-2020-ny-slip-op51377u/
- Decided
- November 13, 2020
- Citation
- 2020 NY Slip Op 51377(U) · 69 Misc 3d 144(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 21st Century Pharm., Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51377(U))
| 21st Century Pharm., Inc. v Global Liberty Ins. Co. of N.Y. |
| 2020 NY Slip Op 51377(U) [69 Misc 3d 144(A)] |
| Decided on November 13, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on November 13, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2568 K C
against
Global Liberty Ins. Co. of NY, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered November 14, 2018. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).
In support of its cross motion, defendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the 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]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). As defendant’s cross motion further established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and [*2]plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, defendant was entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020
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 IME scheduler's supervisor's affidavit established timely mailing of the IME letters and the insurer showed the assignor failed to appear, so plaintiff breached a condition precedent to coverage.
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.
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 also established that it timely denied the claims on the IME no-show ground, entitling it to dismissal.
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.
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 affidavit of the IME scheduling company's supervisor sufficiently established that the IME scheduling letters were timely mailed, and the denials were shown timely.
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.
- 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
- Tyorkin v Global Liberty Ins. (2019 NY Slip Op 51689(U))The insurer established timely IME notices, the assignor's nonappearances, and timely denials based on failure to satisfy a coverage condition.
- Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U))An insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue.
- Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51006(U))The insurer established timely mailing of IME notices and the assignor's nonappearance, warranting dismissal of the claim at issue.
- Medcare Supply, Inc. v Global Liberty Ins. (2020 NY Slip Op 50231(U))The insurer established timely mailing of IME notices and the denial, and the assignor's failure to attend the scheduled IMEs. The provider had obtained summary judgment in its assigned no-fault benefits action, while Civil Court denied the insurer's cross motion asserting the IME no-show defense.
- Lenex Servs., Inc. v Global Liberty Ins. of N.Y. (2020 NY Slip Op 51382(U))The insurer failed to establish proper addressing and mailing of the IME scheduling letters supporting its nonappearance defense.