May 3, 2019
Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50679(U))
https://www.beynensonlaw.com/case-law/alleviation-med-servs-p-c-v-new-york-cent-mut-fire-ins-co-2019-ny-slip-op50679u/
- Decided
- May 3, 2019
- Citation
- 2019 NY Slip Op 50679(U) · 63 Misc 3d 146(A)
- Posture
- Summary judgment
- Outcome
- Insurer 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 New York Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50679(U))
| Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2019 NY Slip Op 50679(U) [63 Misc 3d 146(A)] |
| Decided on May 3, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2909 K C
against
New York Central Mutual Fire Insurance Company, Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Nightingale Law, P.C. (Michael S. Nightingale of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 8, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s arguments, defendant’s proof sufficiently established the proper mailing of the IME scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice
Held, contrary to the provider's arguments, that the insurer's proof sufficiently established the proper mailing of the IME scheduling letters.
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.
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
Rejected the provider's challenges and held the insurer's proof established proper mailing of the IME scheduling letters and the assignor's failure to appear for the scheduled IMEs.
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.
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.
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 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 Elrac, Inc. (2016 NY Slip Op 51351(U))The defendant's summary judgment motion based on the assignor's IME nonappearance was granted and affirmed on appeal.
- 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.