December 17, 2014
All About Rehabilitation & P.T., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51815(U))
https://www.beynensonlaw.com/case-law/all-about-rehabilitation-p-t-p-c-v-praetorian-ins-co-2014-ny-slip-op51815u/
- Decided
- December 17, 2014
- Citation
- 2014 NY Slip Op 51815(U) · 46 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
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 All About Rehabilitation & P.T., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51815(U))
| All About Rehabilitation & P.T., P.C. v Praetorian Ins. Co. |
| 2014 NY Slip Op 51815(U) [46 Misc 3d 130(A)] |
| Decided on December 17, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1436 K C
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered May 7, 2012. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 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 appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.
In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignors had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the affidavit executed by defendant’s litigation examiner sufficiently described the standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). 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., 35 AD3d at 722).
Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
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 scheduler's affidavit proved timely mailing of the IME letters under standard practice and the examining professionals' affidavits proved the assignors' nonappearance.
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 IME no-show defense established where, besides mailing and nonappearance, the litigation examiner's affidavit established timely mailing of the denials.
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 scheduler's standard mailing practice affidavit established timely mailing of the IME letters and the litigation examiner's description of standard practices established timely mailing 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.
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)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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
- 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.
- Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51862(U))The insurer's proof established timely IME notices and denials and the assignor's nonappearances, warranting summary judgment.
- Pro Health Acupuncture, P.C. v Praetorian Ins. (2016 NY Slip Op 50380(U))The insurer's affidavits established timely mailing of the IME requests and denials and the assignor's failure to attend duly scheduled IMEs. The provider sought assigned first-party no-fault benefits.
- Coney Is. Physician Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51859(U))The insurer established outstanding verification for four claims and the assignor's IME nonappearances for the remaining claims.
- J.C. Healing Touch Rehab, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50635(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.