December 31, 2008
All Mental Care Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52588(U))
https://www.beynensonlaw.com/case-law/all-mental-care-medicine-p-c-v-new-york-cent-mut-fire-ins-co-2008-ny-slipop-52588u/
- Decided
- December 31, 2008
- Citation
- 2008 NY Slip Op 52588(U) · 22 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- Proof of mailing · 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 All Mental Care Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52588(U))
| All Mental Care Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2008 NY Slip Op 52588(U) [22 Misc 3d 126(A)] |
| Decided on December 31, 2008 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.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: : PESCE, P.J., GOLIA and RIOS, JJ
2007-1974 K C. NO. 2007-1974 K C
against
New York Central Mutual Fire Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered October 26, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment upon its claims seeking the sums of $240.20 and $1,201.
Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary
judgment granted to the extent of awarding it partial summary judgment on its claims for
$240.20 and $1,201 and matter remanded to the court below for the calculation of statutory
interest and attorney’s fees thereon.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff
moved for summary judgment. Insofar as is relevant to this appeal, defendant
opposed the motion, asserting that it timely denied plaintiff’s claims seeking the sums of
$240.20 and $1,201 based on the assignor’s failure to appear for two independent medical
examinations (IMEs). The court below denied plaintiff’s motion for summary judgment. The
instant appeal by plaintiff ensued.
Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.
While defendant asserted that it timely denied plaintiff’s claims for the sums of $240.20 and
$1,201 based on the assignor’s failure to appear for two scheduled IMEs, defendant failed to
establish by proof in admissible form that the IME requests were timely mailed to the assignor
and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v
[*2]Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Consequently, plaintiff was entitled to summary judgment on these claims.
Accordingly, the matter is remanded to the court below for the calculation of statutory
interest and an assessment of attorney’s fees due on its claims for $240.20 and $1,201 pursuant to
Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to
note that I am constrained to agree with certain propositions of law set forth in the case cited
therein which are inconsistent with my prior expressed positions and generally contrary to my
views.
Decision Date: December 31, 2008
Legal questions (2)
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 a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer did not establish by proof in admissible form that the IME requests were timely mailed to the assignor.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (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 failed to prove the scheduling letters were mailed or properly addressed
Held the insurer failed to establish by admissible proof that the IME requests were timely mailed and that the assignor failed to appear, so the provider was entitled to summary judgment.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (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
- 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.
- Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51954(U))The insurer failed to raise a triable issue on its IME nonappearance defense because it lacked admissible proof from a person with knowledge.
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))The insurer's affidavits established timely mailing of the IME notices and denials and the assignor's failure to appear.
- Ocean Diagnostic Imaging P.C. v Lumbermens Mut. Cas. Co. (2005 NY Slip Op 50743(U))The insurer failed to prove mailing of IME requests and failed to follow up on unanswered verification requests.
- East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))The insurer proved mailing of the IME notices, timely mailing of the denials, and the assignor's failure to attend the scheduled IMEs. An employee of the scheduling company established mailing through its standard office practices and procedures.