October 19, 2016

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2016 NY Slip Op 51479(U))

https://www.beynensonlaw.com/case-law/bronx-acupuncture-therapy-p-c-v-hereford-ins-co-2016-ny-slip-op51479u/

Court: Appellate Term, First Department
Decided: October 19, 2016
Citation: 2016 NY Slip Op 51479(U) · 53 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: IME no-show Timeliness and preclusion
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 53 Misc 3d 137(A), 2016 NY Slip Op 51479(U) (App Term, 1st Dept 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 establish timely IME scheduling because the record did not show when it received the provider's claims. The insurer sought summary judgment based on the assignor's failure to attend two IMEs. Without the claim-receipt date, the record supplied no basis to determine compliance with the procedures and time frames of 11 NYCRR 65-3.5 (d). Although the provider raised this issue for the first time on appeal, it presented a reviewable question of law. The Appellate Term, First Department, reversed the order granting summary judgment and denied the insurer's motion.

Reported in New York Official Reports at Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2016 NY Slip Op 51479(U))

[*1]

Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co.

2016 NY Slip Op 51479(U) [53 Misc 3d 137(A)]

Decided on October 19, 2016

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
570200/16

Bronx Acupuncture Therapy, P.C., a/a/o Shade McBeth, Plaintiff-Appellant,
against
Hereford Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered July 6, 2015, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Alexander M. Tisch, J.), entered July 6, 2015, reversed, with $10 costs, and defendant’s motion denied.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. Although defendant claims that the assignor failed to appear for two scheduled independent medical examinations (IMEs), defendant failed to show that the scheduling of the IMEs complied with the procedures and time frames set forth in Insurance Department Regulations (11 NYCRR) § 65-3.5(d); see American Tr. Ins. Co. v Vance, 131 AD3d 849 [2015]; American Tr. Ins. Co. v Longevity, 131 AD3d 841 [2015]; Acupuncture, Approach, P.C. v Allstate Ins. Co., 46 Misc 3d 151[A], 2015 NY Slip Op 50318[U] [App Term, 1st Dept. 2015]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests. Although this issue was raised for the first time on appeal, it presents a question of law which this Court can review (see American Tr. Ins. Co. v Longevity, 131 AD3d at 841-842).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 19, 2016

Legal questions

A question 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.

No-show defense: insurer's proof

Open the full map

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

Denied the insurer summary judgment because, with no evidence of when it received the claims, it failed to show the IMEs were scheduled within the 65-3.5 (d) time frames.

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

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.

Cited in this decision

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

American Tr. Ins. Co. v Vance (2015 NY Slip Op 06762) FollowedThe insurer failed to show that the assignor's IMEs complied with the 30-day scheduling period under 11 NYCRR 65-3.5 (d).
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).
Acupuncture, Approach, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50318(U)) FollowedThe insurer failed to establish timely IME requests because the record did not show when it received the provider's claims.

Similar decisions

Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co. (2017 NY Slip Op 51870(U))The insurer established timely IME scheduling, the assignor's nonappearance and timely denials, warranting dismissal of the claims.
Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted.
NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.
Life Tree Acupuncture P.C. v Republic W. Ins. Co. (2016 NY Slip Op 50023(U))An insurer may request IMEs before receiving a provider's claim forms under 11 NYCRR 65-1.1.