September 15, 2015
American Tr. Ins. Co. v Vance (2015 NY Slip Op 06762)
https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-vance-2015-ny-slip-op-06762/
- Decided
- September 15, 2015
- Citation
- 2015 NY Slip Op 06762 · 131 AD3d 849
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- Legal questions
- No-show defense: insurer's proof · Proof of mailing (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 American Tr. Ins. Co. v Vance (2015 NY Slip Op 06762)
| American Tr. Ins. Co. v Vance |
| 2015 NY Slip Op 06762 [131 AD3d 849] |
| September 15, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| American Transit Insurance Company,
Respondent, v Shateahah Vance et al., Defendants, and KHL Acupuncture, P.C., Appellant. |
Law Offices of Melissa Betancourt, P.C., New York (Melissa Betancourt of counsel), for appellant.
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered January 2, 2014, which, to the extent appealed from, granted plaintiff’s motion for summary judgment on its complaint against defendant KHL Acupuncture, P.C. (KHL), and declared that KHL is not entitled to receive no-fault benefits from plaintiff, reversed, on the law, without costs, the motion denied, and the declaration vacated.
Plaintiff failed to establish prima facie that it was entitled to deny KHL’s claim because KHL’s assignor, defendant Shateahah Vance, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Vance did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]). For the reasons set forth in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]), we disagree with the dissent’s view that this issue should not be reviewed because it was raised for the first time on appeal. Concur—Acosta, Moskowitz, Richter and Kapnick, JJ.
Friedman, J.P., dissents in a memorandum as follows: I respectfully dissent from the reversal of the grant of summary judgment to plaintiff in this case for substantially the same reason I dissent from the affirmance of the denial of summary judgment to the same plaintiff in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]). Here, as in Longevity, defendant medical vendor raised the issue of whether the IMEs were scheduled to be held within the 30-day time frame prescribed by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) for the first time on appeal. Had the issue been raised before the motion court, plaintiff may well have been able to establish that the IMEs had been scheduled in compliance with the regulation. Moreover, in this case, it seems unfair to reverse the motion court’s granting of summary judgment to plaintiff based on an issue that was not raised in defendant’s opposition to the motion.
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 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 its prima facie burden because, although it proved mailing of the IME notices and nonappearance, it did not show the IMEs were scheduled within the 30-day frame of 65-3.5 (d).
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. One decision in other departments that cites or is cited by this one is on the full map.
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 (rules on the question, but another ground decided the case)
Held the insurer established that the notices of the scheduled IMEs were properly mailed.
Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- Interboro Ins. Co. v Perez (2013 NY Slip Op 08347)The insurer failed to establish mailing of EUO scheduling letters and was denied a default judgment declaring no coverage.
- W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co. (2012 NY Slip Op 51707(U)) FollowedThe insurer failed to schedule the first IME within 30 days of receiving two claims, defeating summary judgment on those claims.
- 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).
Cited by
A label shows how the later decision treated this one.
- American Tr. Ins. Co. v Alcantara (2022 NY Slip Op 01871) FollowedThe insurer failed to prove timely IME requests because its papers did not establish when it received the providers' verification forms.
- Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2016 NY Slip Op 51479(U)) FollowedThe insurer failed to establish timely IME scheduling because the record did not show when it received the provider's claims.
- American Tr. Ins. Co. v Romero-Richiez (2020 NY Slip Op 51181(U))The insurer failed to show that its IME requests satisfied regulatory deadlines or preceded receipt of provider claims.
Similar decisions
- 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.
- Shoreline Healing Acupuncture Group, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 51531(U))The insurer established timely IME notices and denials and both assignors' nonappearance, defeating a condition precedent to coverage.
- 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 Acosta (2022 NY Slip Op 01097)The insurer failed to establish compliance with IME scheduling deadlines, defeating summary judgment based on nonappearance.
- D.A.V. Chiropractic P.C. v American Tr. Ins. Co. (2005 NYSlipOp 50609(U))An insurer's timely denial and admissible proof of a reasonable pre-claim IME nonappearance rebut the presumption of medical necessity.