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March 17, 2022

American Tr. Ins. Co. v Alcantara (2022 NY Slip Op 01871)

https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-alcantara-2022-ny-slip-op-01871/

Court
Appellate Division, First Department
Decided
March 17, 2022
Citation
2022 NY Slip Op 01871 · 203 AD3d 535
Posture
Summary judgment
Outcome
Provider prevailed
Later treatment
Followed in 3 later decisions (see Cited by)
Issues
IME no-show Timeliness and preclusion
Legal questions
No-show defense: insurer's proof (see the maps)
Cite as
American Tr. Ins. Co. v Alcantara, 203 AD3d 535 (1st Dept 2022)

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 timely IME requests because its papers did not establish when it received the providers' verification forms. The Appellate Division, First Department, reversed summary judgment declaring the policy void ab initio and denying the providers no-fault benefits, denied the insurer's motion, and remanded. Without the receipt dates, the court could not determine compliance with the 15-business-day and 30-calendar-day time frames under 11 NYCRR 65-3.5 (b) and (d). The insurer therefore failed to establish entitlement to judgment based on the insured's IME nonappearance.

Reported in New York Official Reports at American Tr. Ins. Co. v Alcantara (2022 NY Slip Op 01871)

American Tr. Ins. Co. v Alcantara
2022 NY Slip Op 01871 [203 AD3d 535]
March 17, 2022
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 4, 2022

[*1] (March 17, 2022)

 American Transit Insurance Company, Respondent,
v
Ada Alcantara, Defendant, Advanced Ortho & Joint Preservation PC et al., Appellants, and P&D Merchandise Corp. et al., Respondents, et al., Defendants.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for Metro Pain Specialists PC and Pro Edge Chiropractic PC, appellants.

Order, Supreme Court, New York County (Louis L. Nock, J.), entered on or about February 24, 2021, which granted plaintiff American Transit Insurance Company’s motion for summary judgment declaring that the insurance policy it had issued was void ab initio and that the medical provider defendants were not entitled to no-fault insurance benefits arising out of a motor vehicle accident involving defendant Ada Alcantara, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for further proceedings consistent with this decision.

Plaintiff insurer failed to establish prima facie that it was entitled to summary judgment based on the insured’s failure to appear for an independent medical examination (IME), as its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR 65-3.5 [b], [d]) governing the timeframes for scheduling IMEs (see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018]; Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]). Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under 11 NYCRR 65-3.5 (b) and (d) (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Vance, 131 AD3d 849, 850 [1st Dept 2015]). Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.

Legal questions

A question 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.

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements

Held the insurer failed to establish prima facie that its IME requests met the 15-business-day and 30-day time frames because its papers did not show when it received the providers' verification forms.

  • Appellate DivisionApp Div 53
  • Appellate TermApp Term 71
  • Trial courtsTrial 40
2023, Appellate Division: 4 decisions (3 Defense proved, 1 Requests not compliant)2022, Appellate Division: 8 decisions (3 Defense proved, 5 Requests not compliant)2021, Appellate Division: 2 decisions (2 Defense proved)2020, Appellate Division: 4 decisions (3 Defense proved, 1 Requests not compliant)2019, Appellate Division: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2018, Appellate Division: 5 decisions (2 Defense proved, 1 Mailing not proved, 2 Requests not compliant)2017, Appellate Division: 3 decisions (2 Defense proved, 1 Requests not compliant)2016, Appellate Division: 5 decisions (3 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2015, Appellate Division: 7 decisions (2 Defense proved, 5 Requests not compliant)2014, Appellate Division: 2 decisions (2 Defense proved)2013, Appellate Division: 4 decisions (3 Defense proved, 1 Mailing not proved)2011, Appellate Division: 1 decision (1 Defense proved)2024, Appellate Division: 2 decisions (2 Defense proved)2025, Appellate Division: 3 decisions (2 Defense proved, 1 Requests not compliant)2019, Appellate Term: 3 decisions (1 Mailing not proved, 1 Nonappearance not proved, 1 Triable issue)2018, Appellate Term: 1 decision (1 Defense proved)2017, Appellate Term: 1 decision (1 Nonappearance not proved)2016, Appellate Term: 14 decisions (5 Defense proved, 6 Nonappearance not proved, 1 Requests not compliant, 2 Triable issue)2015, Appellate Term: 12 decisions (11 Defense proved, 1 Requests not compliant)2014, Appellate Term: 6 decisions (6 Defense proved)2013, Appellate Term: 5 decisions (4 Defense proved, 1 Mailing not proved)2012, Appellate Term: 8 decisions (6 Defense proved, 2 Mailing not proved)2011, Appellate Term: 7 decisions (6 Defense proved, 1 Mailing not proved)2010, Appellate Term: 2 decisions (2 Defense proved)2007, Appellate Term: 1 decision (1 Requests not compliant)2006, Appellate Term: 2 decisions (1 Requests not compliant, 1 Triable issue)2005, Appellate Term: 3 decisions (1 Defense proved, 2 Requests not compliant)2025, Appellate Term: 3 decisions (3 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2020, Appellate Term: 1 decision (1 Mailing not proved)2022, Trial courts: 8 decisions (2 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 4 Requests not compliant)2021, Trial courts: 6 decisions (3 Defense proved, 2 Requests not compliant, 1 No-show excused)2020, Trial courts: 7 decisions (1 Mailing not proved, 6 Requests not compliant)2019, Trial courts: 1 decision (1 Defense proved)2018, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 3 decisions (2 Defense proved, 1 Nonappearance not proved)2013, Trial courts: 4 decisions (2 Defense proved, 2 Nonappearance not proved)2009, Trial courts: 1 decision (1 Defense proved)2007, Trial courts: 1 decision (1 Requests not compliant)2024, Trial courts: 1 decision (1 Requests not compliant)2025, Trial courts: 2 decisions (1 Mailing not proved, 1 Nonappearance not proved)2026, Trial courts: 1 decision (1 Mailing not proved)2005, Trial courts: 1 decision (1 Defense proved)2023, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Hertz Vehicles, LLC v Best Touch PT, P.C. (2018 NY Slip Op 04854) FollowedThe insurer failed to prove timely EUO requests for default relief against providers but established one claimant's failure to sign an EUO. The motion omitted receipt dates for the providers' verification forms and another claimant's application, preventing assessment of the 15-business-day deadline under 11 NYCRR 65-3.5 (a) and (b).
  • Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916) FollowedThe insurer failed to establish whether its EUO notices were subject to regulatory deadlines or complied with applicable deadlines.
  • American Tr. Ins. Co. v Longevity Med. Supply, Inc. (2015 NY Slip Op 06761) FollowedAn insurer seeking summary judgment on an IME no-show must prove compliance with the 30-day period in 11 NYCRR 65-3.5 (d).
  • American Tr. Ins. Co. v Acosta (2022 NY Slip Op 01097) FollowedThe insurer failed to establish compliance with IME scheduling deadlines, defeating summary judgment based on nonappearance.
  • American Tr. Ins. Co. v Vance (2015 NY Slip Op 06762) FollowedThe insurer failed to show that the assignor's IMEs complied with the 30-day scheduling period under 11 NYCRR 65-3.5 (d).

Cited by

A label shows how the later decision treated this one.

  • State Farm Fire & Cas. Co. v Atlantic Diagnostic, L.L.C. (2024 NY Slip Op 50436(U)) FollowedAn assignor who appears for an EUO must sign the transcript on request even if the insurer has not proved its EUO request timely.
  • American Tr. Ins. Co. v Lopez (2022 NY Slip Op 50218(U)) FollowedThe insurer failed to establish timely IME scheduling because it did not supply the answering providers' NF-3 verification forms.
  • American Tr. Ins. Co. v Ferguson (2022 NY Slip Op 50757(U)) FollowedThe insurer's default judgment motion failed because it did not establish compliance with the regulatory timing requirements for IMEs. The Supreme Court, New York County, denied the unopposed motion against the injured claimant and nonappearing provider-assignees.

Similar decisions

  • American Tr. Ins. Co. v Martinez (2022 NY Slip Op 00963)The insurer failed in both actions to establish timely IME requests and scheduling, defeating its nonappearance-based motions.
  • American Tr. Ins. Co. v Melendez (2022 NY Slip Op 02356)The insurer failed to establish timely IME scheduling because it supplied no evidence of when it received the providers' claims.
  • Alfa Med. Supplies, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 51847(U))An insurer may request IMEs before receiving claim forms and deny claims retroactively when the assignor fails to appear.
  • 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.
  • American Tr. Ins. Co. v Clark (2015 NY Slip Op 06759)The insurer failed to establish that the assignor's IMEs were scheduled within the 30-day period required by 11 NYCRR 65-3.5 (d).
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