December 22, 2017

Active Care Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51859(U))

https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-elrac-inc-2017-ny-slip-op-51859u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51859(U) · 58 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Active Care Med. Supply Corp. v ELRAC, Inc., 58 Misc 3d 140(A), 2017 NY Slip Op 51859(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 defendant's summary judgment dismissal based on the assignor's IME nonappearances was upheld on appeal. The provider's sole contention challenged the sufficiency of the affidavit from the doctor scheduled to perform the IMEs. The Appellate Term, Second Department, affirmed the order, finding the doctor's affidavit sufficient to establish nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., without further analysis.

Reported in New York Official Reports at Active Care Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51859(U))

[*1]

Active Care Med. Supply Corp. v ELRAC, Inc.

2017 NY Slip Op 51859(U) [58 Misc 3d 140(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-379 K C

Active Care Medical Supply Corp., as Assignee of Barley, Taryn, Appellant,

against

ELRAC, Inc., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Brand, Glick & Brand, P.C. (Jason P. Bertuna, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 8, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s sole contention, the affidavit submitted by the doctor who was to perform the IMEs was sufficient to establish that plaintiff had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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.

No-show defense: insurer's proof

Open the full map

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

Upheld dismissal because the affidavit of the doctor who was to perform the IMEs sufficed to prove the nonappearance.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 518 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

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

Daily Med. Equip. Distrib. Ctr., Inc. v ELRAC, Inc. (2017 NY Slip Op 51805(U))The defendant's summary judgment dismissal for IME nonappearances was upheld on proof of timely denial mailing and nonappearance.
Trimed Med. Supply, Inc. v ELRAC, Inc. (2010 NY Slip Op 52057(U))The scheduled IME doctor's affidavit established that the assignor failed to appear at the office identified in the scheduling letters.
S & R Med., P.C. v ELRAC, Inc. (2018 NY Slip Op 50834(U))The self-insurer's summary judgment dismissal for the assignor's IME nonappearance was affirmed on mailing and nonappearance proof.
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 51616(U))The insurer's summary judgment dismissal based on the provider's EUO nonappearances was affirmed.
Compas Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 50927(U))The defendant's affidavits established timely mailing of the IME scheduling letters and denial of claim form.