March 17, 2016
Alleviation Med. Servs., P.C. v A Cent. Ins. Co. (2016 NY Slip Op 50383(U))
https://www.beynensonlaw.com/case-law/alleviation-med-servs-p-c-v-a-cent-ins-co-2016-ny-slip-op50383u/
- Decided
- March 17, 2016
- Citation
- 2016 NY Slip Op 50383(U) · 51 Misc 3d 129(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 Alleviation Med. Servs., P.C. v A Cent. Ins. Co. (2016 NY Slip Op 50383(U))
| Alleviation Med. Servs., P.C. v A. Cent. Ins. Co. |
| 2016 NY Slip Op 50383(U) [51 Misc 3d 129(A)] |
| Decided on March 17, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through April 8, 2016; it will not be published in the printed Official Reports. |
Decided on March 17, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
&em;
against
A. Central Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 22, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
Plaintiff correctly argues on appeal that defendant’s moving papers failed to establish as a matter of law that the letters scheduling the independent medical examinations (IMEs) of plaintiff’s assignor had been timely and properly mailed to the assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that it is entitled to summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to an insurer’s liability on a policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Although defendant attempted, in its reply papers, to cure the defect, the affirmation of defendant’s counsel was insufficient to do so since counsel lacked personal knowledge. In any event, defendant could not establish its entitlement to judgment by submitting, as part of its reply papers, sufficient evidence in admissible form to cure defects in its moving papers (see North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 17, 2016
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 failed to establish timely and proper mailing of the IME scheduling letters; counsel's reply affirmation lacked personal knowledge and reply papers could not cure the defect.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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 prove the IME scheduling letters were timely and properly mailed, so the IMEs were not shown properly scheduled; an attorney's reply affirmation without personal knowledge could not cure this.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (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.
- 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.
- North Acupuncture, P.C. v State Farm Ins. Co. (2006 NY Slip Op 52523(U)) FollowedThe provider failed to establish summary judgment entitlement through competent evidence and could not cure its moving papers in reply.
Similar decisions
- Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50952(U))The insurer failed to establish proper mailing of IME notices because the record showed conflicting addresses and no confirmed attorney representation.
- Alleviation Med. Servs., P.C. v Maya Assur. Co. (2015 NY Slip Op 51238(U))The insurer failed to establish timely mailing of the IME scheduling letters and was denied summary judgment.
- Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))The insurer failed to prove both IME nonappearances, and the provider failed to establish an untimely or legally defective denial.
- Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50922(U))The insurer failed to establish the assignor's IME nonappearance or receipt of notice of both scheduled IMEs. The provider appealed from summary judgment dismissing its assigned no-fault claims.
- Alleviation Med. Servs., P.C. v Farmers New Century Ins. Co. (2016 NY Slip Op 50379(U))The insurer's IME nonappearance defense was precluded on the first claim because it failed to deny within 30 days or establish tolling.