April 12, 2022

American Tr. Ins. Co. v Melendez (2022 NY Slip Op 02356)

https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-melendez-2022-ny-slip-op-02356/

Court: Appellate Division, First Department
Decided: April 12, 2022
Citation: 2022 NY Slip Op 02356 · 204 AD3d 461
Posture: Declaratory judgment action
Outcome: Provider prevailed
Issues: IME no-show Timeliness and preclusion

Cite as

American Tr. Ins. Co. v Melendez, 204 AD3d 461 (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 establish timely IME scheduling because it supplied no evidence of when it received the providers' claims. The Appellate Division, First Department, reversed the order and judgment declaring that two providers were not entitled to no-fault benefits and vacated the judgment. Without evidence of claim receipt, the insurer could not make a prima facie showing that it scheduled the assignor's IME within the prescribed time frames under 11 NYCRR 65-3.5 (b) and (d).

Reported in New York Official Reports at American Tr. Ins. Co. v Melendez (2022 NY Slip Op 02356)

American Tr. Ins. Co. v Melendez

2022 NY Slip Op 02356 [204 AD3d 461]

April 12, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 1, 2022

[*1]

American Transit Insurance Company, Respondent,
v
Louis Melendez et al., Defendants, and Metro Pain Specialists, P.C., et al., Appellants.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Order and judgment (one paper), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 2, 2021, declaring that defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. are not entitled to no-fault benefits, unanimously reversed, on the law, with costs, and the judgment vacated.

Plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling defendant Louis Melendez’s independent medical examination (IME) as set forth in the no-fault implementing regulations (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Martinez, 202 AD3d 526 [1st Dept 2022]). Plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame (see 11 NYCRR 65-3.5 [b], [d]). Concur—Manzanet-Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ.

Cited in this decision

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

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 Martinez (2022 NY Slip Op 00963) FollowedThe insurer failed in both actions to establish timely IME requests and scheduling, defeating its nonappearance-based motions.

Similar decisions

American Tr. Ins. Co. v Alcantara (2022 NY Slip Op 01871)The insurer failed to prove timely IME requests because its papers did not establish when it received the providers' verification forms.
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).
Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U))An insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue.
Hereford Ins. Co. v Lida’s Med. Supply, Inc. (2018 NY Slip Op 03226)The insurer's scheduling letters, service affidavits, and medical professionals' affidavits established the claimants' IME nonappearances.
Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. (2023 NY Slip Op 03191)An injured claimant's failure to attend requested IMEs breaches a condition precedent and vitiates no-fault coverage.