December 5, 2013
American Tr. Ins. Co. v Leon (2013 NY Slip Op 08124)
https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-leon-2013-ny-slip-op-08124/
- Decided
- December 5, 2013
- Citation
- 2013 NY Slip Op 08124 · 112 AD3d 441
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 American Tr. Ins. Co. v Leon (2013 NY Slip Op 08124)
| American Tr. Ins. Co. v Leon |
| 2013 NY Slip Op 08124 [112 AD3d 441] |
| December 5, 2013 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| American Transit Insurance Company,
Appellant, v Pablo Leon et al., Defendants, and Stand-Up MRI of Bensonhurst, P.C., Respondent. |
—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.
Order, Supreme Court, New York County (Ellen M. Coin, J.), entered March 26, 2013, which denied plaintiff’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff insurance company has no obligation to pay defendant Stand-Up MRI’s claims.
Plaintiff demonstrated its entitlement to judgment as a matter of law by submitting competent evidence that it mailed the notices scheduling the injured defendant’s independent medical examinations (IMEs) and that he failed to appear for the examinations (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Defendant provider’s contention that plaintiff failed to prove the mailing of IME notices to the assignor’s attorney, absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim, is unavailing (see Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co., 31 Misc 3d 128[A], 2011 NY Slip Op 50473[U] [App Term, 1st Dept 2011]).
Attendance at a medical examination is a condition of coverage. Accordingly, there is no [*2]requirement that the claim denial be timely made (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Freedman and Gische, JJ.
Legal questions (3)
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 the insurer's competent evidence proved mailing of the IME notices and rejected the argument that notices had to go to the assignor's attorney absent proof the assignor had counsel on the claim.
Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (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
Held the insurer proved it mailed the IME scheduling notices and that the claimant failed to appear, rejecting the claim that notice to the assignor's attorney was required without proof of representation.
Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 92 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show voids coverage; insurer need not show a timely denial (rules on the question, but another ground decided the case)
Held that because attendance at a medical examination is a condition of coverage, the insurer did not have to show the claim denial was timely made.
Of the 36 decisions on this question in the First Department courts and the Court of Appeals, 29 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273) FollowedFailure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness.
- Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U)) FollowedThe insurer established mailing of the IME notices and the assignor's nonappearance, while the provider raised no triable issue.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Cited by
A label shows how the later decision treated this one.
- Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921) FollowedFailure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.
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.
- MRJA Radiology, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51381(U))The insurer established the assignor's IME nonappearance through the scheduled physician's affirmation and the scheduler employee's affidavit.
- Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am. (2016 NY Slip Op 50339(U))The insurer failed to establish IME nonappearance through affidavits that did not explain the doctors' recollections a year later.
- Stracar Med. Servs. v New York Cent. Mut. Ins. Co. (2014 NY Slip Op 50263(U))An assignor's failure to attend requested IMEs permits retroactive denial of all claims to the loss date regardless of denial timeliness.
- Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))The insurer established timely mailing of IME notices and the assignor's repeated nonappearance through affidavits based on personal knowledge.