February 19, 2013
Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50258(U))
https://www.beynensonlaw.com/case-law/alev-med-supply-inc-v-new-york-cent-mut-fire-ins-co-2013-ny-slipop-50258u/
- Decided
- February 19, 2013
- Citation
- 2013 NY Slip Op 50258(U) · 38 Misc 3d 143(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 6 later decisions (see Cited by)
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 Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50258(U))
| Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. |
| 2013 NY Slip Op 50258(U) [38 Misc 3d 143(A)] |
| Decided on February 19, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1561 K C.
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 4, 2011. The order, insofar as appealed from, granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered May 5, 2011 awarding plaintiff the principal sum of $1,368 (see CPLR 5501 [c]).
ORDERED that the judgment is reversed, with $30 costs, so much of the April 4, 2011 order as granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, those branches of defendant’s motion are granted and those branches of plaintiff’s cross motion are denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the bills at issue had been timely denied based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. The Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the first cause of action [*2]and granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action. The court implicitly found that defendant had demonstrated that it had timely and properly mailed initial and follow-up IME scheduling letters and that plaintiff’s assignor had not appeared for the scheduled IMEs. However, as to the second and third causes of action, the court found that defendant’s denials were untimely because they had been mailed more than 45 days after plaintiff’s assignor had violated a policy condition by failing to appear for the second scheduled IME. On appeal, defendant argues that the branches of its motion seeking summary judgment dismissing the second and third causes of action should have been granted.
Defendant demonstrated that it had timely mailed both initial and follow-up IME requests and initial and follow-up requests for written verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]), thereby tolling its time to pay or deny the claims at issue. While plaintiff’s assignor failed to appear for IMEs on January 16, 2009 and February 2, 2009, defendant did not receive the requested written verification until February 19, 2009. As defendant denied the claims within 30 days of its receipt of the requested written verification (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), the claims at issue were timely denied on the ground that plaintiff’s assignor had failed to appear for properly scheduled IMEs, regardless of the fact that the last nonappearance had occurred more than 45 days prior to the issuance of the denial (see Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 154[A], 2012 NY Slip Op 51725[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant was not precluded from raising the defense, and, as plaintiff failed to raise a triable issue of fact, the branches of defendant’s motion seeking summary judgment dismissing the second and third causes of action should have been granted.
Accordingly, the judgment is reversed, so much of the April 4, 2011 order as granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, those branches of defendant’s motion are granted and those branches of plaintiff’s cross motion are denied.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013
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.
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
Held the IME no-show denials timely because written verification requests tolled the time until the verification arrived, so denials within 30 days thereafter were timely despite coming over 45 days after the last nonappearance.
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 insurer demonstrated timely mailing of initial and follow-up IME scheduling letters and written verification requests, while the dispute turned on the timeliness of the denials.
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.
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 (rules on the question, but another ground decided the case)
Held the insurer demonstrated timely mailing of initial and follow-up IME requests and the assignor's nonappearance at two IMEs, with the dispute turning on the timeliness of the denials.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51725(U)) FollowedThe 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.
- 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.
Cited by
A label shows how the later decision treated this one.
- Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U)) FollowedThe 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
- Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51584(U)) FollowedThe insurer established lack of medical necessity through an unrebutted IME report despite insufficient proof of EUO nonappearance.
- TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51318(U)) FollowedThe insurer established an IME nonappearance defense on the first claim but failed to prove a timely denial of the second.
- Ortho Passive Motion, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51364(U)) FollowedThe insurer established timely IME notices, the assignor's nonappearance, and timely denials after receipt of requested verification.
- Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2017 NY Slip Op 51869(U)) FollowedThe insurer proved the assignor's IME nonappearance through the examining doctor's affirmation and established timely mailing of denials.
- Avalon Radiology, P.C. v Global Liberty Ins. (2020 NY Slip Op 51374(U)) FollowedAn insurer awaiting timely requested verification need not deny a claim even when it already has a ground for denial.
- Choice Health Chiropractic, P.C. v American Tr. Ins. Co. (2018 NY Slip Op 50185(U))Disputed mailing of verification requests prevented summary judgment on one IME nonappearance claim because denial timeliness remained unresolved.
Similar decisions
- Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51230(U))The insurer established lack of medical necessity on two claims and the assignor's IME nonappearance on the third.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50963(U))The insurer proved its IME nonappearance defense for 13 claims but failed to establish timely denial of the fourteenth.
- Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))The insurer established timely IME notices and the assignor's nonappearance, defeating the provider's claims.
- Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 51712(U))The insurer's proof of timely IME notices and denials and the assignor's nonappearance raised a triable issue on six causes of action.
- Right Solution Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51860(U))The insurer established IME nonappearances for two claims and outstanding verification that made a third claim premature.