May 23, 2011
All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. (2011 NY Slip Op 50949(U))
https://www.beynensonlaw.com/case-law/all-borough-group-med-supply-inc-v-utica-mut-ins-co-2011-ny-slip-op50949u/
- Decided
- May 23, 2011
- Citation
- 2011 NY Slip Op 50949(U) · 31 Misc 3d 146(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 2 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 All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. (2011 NY Slip Op 50949(U))
| All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. |
| 2011 NY Slip Op 50949(U) [31 Misc 3d 146(A)] |
| Decided on May 23, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2010-254 K C.
against
Utica Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 2, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint, which motion was based upon, among other things, plaintiff’s assignor’s failure to attend independent medical examinations (IMEs), which had been scheduled by Hudson Valley Medical Consultants (HVMC).
In support of its motion, defendant submitted an affidavit of an employee of HVMC which sufficiently established that the IME requests had been timely mailed in accordance with HVMC’s standard office 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 an affidavit of an employee of the office manager of the psychologist who was to perform the IMEs, which was sufficient to establish that plaintiff’s 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]). In addition, an affidavit executed by defendant’s no-fault specialist demonstrated that the claim denial forms, based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 [*2]Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s claim based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, ___ AD3d ___, 2011 NY Slip Op 01948 [1st Dept 2011]). Accordingly, the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint is affirmed. In light of our determination, we need not reach the remaining contentions raised on appeal.
Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 23, 2011
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 insurer proved the IME no-show defense through the scheduler's mailing affidavit and an affidavit from the examining psychologist's office establishing nonappearance.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
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 not precluded from its IME no-show defense because it properly and timely denied the claim on that ground, following the Second Department rule rather than the First Department's.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
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 office-practice affidavits sufficient to establish timely mailing of the IME requests and the claim denial forms.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn 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.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An 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.
- Eastern Star Acupuncture, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52205(U)) FollowedThe insurer's IME nonappearance defense was precluded for the claim its denial form instead denied based on an IME report.
- Jamhil Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51644(U)) FollowedThe insurer established timely mailing of IME notices and a denial based on the assignor's failure to appear for the scheduled IMEs. The president of the independent medical review service retained to schedule the examinations established timely mailing of the scheduling letters.
- Vega Chiropractic, P.C. v Kemper Independence Ins. Co. (2011 NY Slip Op 52291(U))The provider failed to raise a factual issue about the reasonableness of scheduling the IMEs that its assignor missed.
Similar decisions
- 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.
- Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2017 NY Slip Op 51869(U))The insurer proved the assignor's IME nonappearance through the examining doctor's affirmation and established timely mailing of denials.
- By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50472(U))An insurer's IME nonappearance defense is subject to preclusion if the insurer fails to timely deny the 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.