October 30, 2015

Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))

https://www.beynensonlaw.com/case-law/alleviation-med-servs-p-c-v-allstate-ins-co-2015-ny-slip-op51591u/

Court: Appellate Term, Second Department
Decided: October 30, 2015
Citation: 2015 NY Slip Op 51591(U)
Posture: Summary judgment
Outcome: Split result
Issues: IME no-show Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

Alleviation Med. Servs., P.C. v Allstate Ins. Co., 2015 NY Slip Op 51591(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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.

The insurer failed to prove both IME nonappearances, and the provider failed to establish an untimely or legally defective denial. The insurer's doctor's affirmation did not establish, through personal knowledge or another appropriate means, that the assignor failed to appear for both scheduled IMEs. The insurer therefore lacked entitlement to summary judgment dismissing the complaint. The provider's supporting affidavit likewise did not establish that the claim was untimely denied or that a timely denial was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, preserving denial of the provider's summary judgment motion.

Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Alleviation Medical Services, P.C. as Assignee of Jorde Adams, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 18, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues that defendant’s cross motion should have been denied. In support of a claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted an affirmation from the doctor who was to perform the IMEs. The doctor failed to demonstrate by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), the nonappearance of plaintiff’s assignor for both of the IMEs. Therefore defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted by plaintiff in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. [*2]Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 30, 2015

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to make its prima facie showing because its affidavit did not establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

No-show defense: insurer's proof

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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 nonappearance by someone with personal knowledge

Held the insurer not entitled to summary judgment because the doctor's affirmation did not show, by personal knowledge or other appropriate means, the assignor's nonappearance at both IMEs.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (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.
Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Quality Health Prods. v Hertz Claim Mgt. Corp (2012 NY Slip Op 51722(U))The insurer proved the assignors' IME nonappearances through affidavits from a chiropractor and orthopedist with personal knowledge.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Alleviation Med. Servs., P.C. v A Cent. Ins. Co. (2016 NY Slip Op 50383(U))The insurer failed to establish timely and proper mailing of the IME scheduling letters, defeating summary judgment on its nonappearance defense.
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 Hertz Co. (2016 NY Slip Op 50399(U))The insurer failed to prove IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment.
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.
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.