August 31, 2012
Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 51712(U))
https://www.beynensonlaw.com/case-law/brooklyn-hgts-physical-therapy-p-c-v-liberty-mut-fire-ins-co-2012-nyslip-op-51712u/
- Decided
- August 31, 2012
- Citation
- 2012 NY Slip Op 51712(U) · 36 Misc 3d 153(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 51712(U))
| Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. |
| 2012 NY Slip Op 51712(U) [36 Misc 3d 153(A)] |
| Decided on August 31, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-241 Q C.
against
Liberty Mutual Fire Ins. Co., Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered December 17, 2010. The judgment, entered pursuant to so much of an order of the same court dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action, awarded plaintiff the principal sum of $3,519.08.
ORDERED that the judgment is reversed, without costs, so much of the order dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action is vacated, and those branches of plaintiff’s motion are denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment of the Civil Court in favor of plaintiff in the principal sum of $3,519.08, entered pursuant to so much of an order dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action.
In opposition to plaintiff’s motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule independent medical examinations [*2](IMEs). The affidavit established that the IME scheduling letters had been timely mailed pursuant to the company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted affirmations from the doctor who was to perform the IMEs which established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claim specialist demonstrated that the denial of claim forms, which denied plaintiff’s claims comprising the fifth through tenth causes of action based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), defendant raised a triable issue of fact and the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action should have been denied.
Accordingly, the judgment is reversed, so much of the order dated November 19, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on the fifth through tenth causes of action is vacated, and those branches of plaintiff’s motion are denied.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012
Legal questions (3)
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 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 the insurer's opposition proved timely mailing of the IME letters under the scheduler's standard practice and timely mailing of the denials, defeating the provider's summary judgment motion.
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Proof on the no-show raises a question of fact; neither side wins the point as a matter of law
Held the insurer's proof of mailed IME letters, the assignor's nonappearance and timely denials raised a triable issue on the no-show defense, so the provider's summary judgment was vacated.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 24 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the claim specialist's affidavit showed the IME no-show denials were timely mailed, which, with the other proof, raised a triable issue defeating the provider's motion.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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.
Similar decisions
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement.
- 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.
- By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices.
- J.C. Healing Touch Rehab, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50635(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.
- Park Slope Med. v Praetorian Ins. Co. (2011 NY Slip Op 52062(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.