September 27, 2016

Arguelles, M.D., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51422(U))

https://www.beynensonlaw.com/case-law/arguelles-m-d-p-c-v-american-tr-ins-co-2016-ny-slip-op51422u/

Court: Appellate Term, Second Department
Decided: September 27, 2016
Citation: 2016 NY Slip Op 51422(U)
Posture: Summary judgment
Outcome: Split result
Issues: IME no-show Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

Arguelles, M.D., P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51422(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 the assignor's IME nonappearance through a witness with personal knowledge. The provider appealed the denial of its summary judgment motion and dismissal of the fourth through sixth causes of action on IME nonappearance grounds. The provider's proof failed to establish untimely denials or timely denials that were conclusory, vague or without merit as a matter of law. The insurer, however, supplied no proof from someone with personal knowledge attesting to the assignor's nonappearance. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of those causes of action and otherwise affirmed the denial of the provider's motion.

Reported in New York Official Reports at Arguelles, M.D., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51422(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Arguelles, M.D., P.C., as Assignee of BETTY ST. FLEUR, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 27, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the fourth through sixth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the fourth through sixth causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the fourth through sixth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s contention, plaintiff failed to demonstrate its entitlement to summary judgment on the fourth through sixth causes of action, as the proof submitted by plaintiff failed to establish that these claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, plaintiff correctly argues that defendant failed to submit proof by someone with personal knowledge attesting to the nonappearance of plaintiff’s assignor for the IMEs in question (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the fourth through [*2]sixth causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 27, 2016

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's proof failed to establish that the claims had not been timely denied or that timely denials were conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

No-show defense: insurer's proof

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

This decision: Insurer failed to prove the nonappearance by someone with personal knowledge

Held the insurer's IME no-show cross motion should have been denied because it submitted no proof from anyone with personal knowledge of the assignor's nonappearance.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
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.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) FollowedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.

Similar decisions

JCC Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51764(U))The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
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.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50472(U))An insurer's IME nonappearance defense is subject to preclusion if the insurer fails to timely deny the claims.
Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 51712(U))The insurer's proof of timely IME notices and denials and the assignor's nonappearance raised a triable issue on six causes of action.
Elmont Rehab P.T., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50961(U))The insurer established the assignor's failure to attend duly scheduled IMEs and timely denials based on those nonappearances.