July 19, 2019

Brand Med. Supply, Inc. v Repwest Ins. Co. (2019 NY Slip Op 51183(U))

https://www.beynensonlaw.com/case-law/brand-med-supply-inc-v-repwest-ins-co-2019-ny-slip-op-51183u/

Court: Appellate Term, Second Department
Decided: July 19, 2019
Citation: 2019 NY Slip Op 51183(U) · 64 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Brand Med. Supply, Inc. v Repwest Ins. Co., 64 Misc 3d 138(A), 2019 NY Slip Op 51183(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 provider's challenge to IME notice failed because the mailing address matched the address on its bill and the assignor's application. The insurer sought summary judgment based on the assignor's failure to appear for scheduled IMEs. The provider's sole appellate argument was that the scheduling letters omitted an apartment number. The record conclusively showed that the letters used the address supplied in both the bill and the NF-2 application, so the provider did not demonstrate improper notice. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Brand Med. Supply, Inc. v Repwest Ins. Co. (2019 NY Slip Op 51183(U))

[*1]

Brand Med. Supply, Inc. v Repwest Ins. Co.

2019 NY Slip Op 51183(U) [64 Misc 3d 138(A)]

Decided on July 19, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 19, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-686 K C

Brand Medical Supply, Inc., as Assignee of Yazmin Arias, Appellant,
against
Repwest Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Bryan Cave, LLP (Laurie Belony of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 11, 2017. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court granted defendant’s motion.

Plaintiff’s sole argument on appeal is that defendant mailed the IME scheduling letters to the assignor’s address without using an apartment number, and that, therefore, that defendant’s motion should have been denied. However, the record demonstrates conclusively that the address to which defendant mailed the letters matched the address provided by plaintiff on its bill and by plaintiff’s assignor on the assignor’s application for no-fault benefits (NF-2). Thus, plaintiff has not demonstrated that defendant did not give the assignor proper notice of the IMEs (see Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019

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.

Proof of mailing

Open 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

Held IME letters lacking an apartment number properly addressed because the address matched the one on the provider's bill and the assignor's NF-2.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Rejected the sole challenge that the IME letters omitted an apartment number, holding they went to the address on the bill and NF-2, so proper notice was given.

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, 527 (this one included) are in the same category.

Cited in this decision

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

Sunlight Med. Care, P.C. v Esurance Ins. Co. (2015 NY Slip Op 51410(U)) FollowedThe insurer properly sent EUO notices to the address supplied on the provider's bills and the assignor's no-fault and assignment forms.

Similar decisions

Brand Med. Supply, Inc. v Praetorian Ins. Co. (2017 NY Slip Op 50947(U))The insurer's affidavits established timely IME notices, the assignor's nonappearances and a timely denial on that ground.
Preferred Ortho Prods., Inc. v 21st Century Ins. Co. (2019 NY Slip Op 50224(U))The provider's challenge to the address on the IME scheduling letters was unpreserved because it was first raised on appeal.
Medcare Supply, Inc. v Global Liberty Ins. (2020 NY Slip Op 50231(U))The insurer established timely mailing of IME notices and the denial, and the assignor's failure to attend the scheduled IMEs. The provider had obtained summary judgment in its assigned no-fault benefits action, while Civil Court denied the insurer's cross motion asserting the IME no-show defense.
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.
Citycare Chiropractic, P.C. v Repwest Ins. Co. (2022 NY Slip Op 50619(U))The assignor's conclusory denial of receiving IME scheduling letters did not rebut the insurer's proof of proper mailing and nonappearance.