March 16, 2015
Acupuncture, Approach, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50318(U))
https://www.beynensonlaw.com/case-law/acupuncture-approach-p-c-v-allstate-ins-co-2015-ny-slip-op50318u/
- Decided
- March 16, 2015
- Citation
- 2015 NY Slip Op 50318(U) · 46 Misc 3d 151(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- 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 Acupuncture, Approach, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50318(U))
| Acupuncture, Approach, P.C. v Allstate Ins. Co. |
| 2015 NY Slip Op 50318(U) [46 Misc 3d 151(A)] |
| Decided on March 16, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2015
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570787/14
against
Allstate Insurance Company, Defendant-Appellant.
Defendant appeals from so much of an order the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered July 25, 2014, as denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Jennifer G. Schecter, J.), entered July 25, 2014, insofar as appealed from, affirmed, with $10 costs.
The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. Although defendant claims that the assignor failed to appear for two scheduled independent medical examinations (IMEs), defendant failed to satisfy its initial burden of establishing, prima facie, “that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: March 16, 2015
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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held the insurer failed its prima facie burden on the IME no-show defense because the record did not show when it received the claims, leaving no basis to determine whether the IME requests were timely.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category.
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.
Cited by
A label shows how the later decision treated this one.
- Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2016 NY Slip Op 51479(U)) FollowedThe insurer failed to establish timely IME scheduling because the record did not show when it received the provider's claims.
Similar decisions
- Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))The insurer failed to establish timely mailing of denials supporting its defense that the assignor missed scheduled IMEs. The insurer sought summary judgment dismissing the first through fourth causes of action in an assigned no-fault benefits action.
- Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.
- 21st Century Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50445(U))The insurer proved timely mailing of the IME notices and the assignor's nonappearance, warranting dismissal of the provider's claims.
- Healthy Way Acupuncture, P.C. v Allstate Ins. Co. (2014 NY Slip Op 50841(U))An assignor's failure to attend requested IMEs permits retroactive denial of all claims, regardless of denial timeliness or initial grounds.
- NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.