March 29, 2011

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))

https://www.beynensonlaw.com/case-law/center-for-orthopedic-surgery-llp-v-new-york-cent-mut-fire-ins-co-2011-nyslip-op-50473u/

Court: Appellate Term, First Department
Decided: March 29, 2011
Citation: 2011 NY Slip Op 50473(U) · 31 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: IME no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co., 31 Misc 3d 128(A), 2011 NY Slip Op 50473(U) (App Term, 1st Dept 2011)

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 established mailing of the IME notices and the assignor's nonappearance, while the provider raised no triable issue. In this assigned no-fault action, the insurer's documentary submissions established its defense, and the provider failed to raise a factual issue concerning either the reasonableness of the requests or nonattendance. The provider's objection that the insurer did not prove mailing to the assignor's attorney was unavailing because the record contained no competent proof of representation concerning the claim. The Appellate Term, First Department, reversed the order denying summary judgment, granted the insurer's motion, and dismissed the complaint.

Reported in New York Official Reports at Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))

[*1]

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co.

2011 NY Slip Op 50473(U) [31 Misc 3d 128(A)]

Decided on March 29, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
571027/10.

Center for Orthopedic Surgery, LLP, a/a/o Derek Huff, Plaintiff-Respondent, – –
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about December 10, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered on or about December 10, 2009, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). Plaintiff’s contention that defendant failed to prove the mailing of the IME notices to the assignor’s attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 29, 2011

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 the insurer's submissions established mailing of the IME notices to the assignor and rejected the claim that notices also had to go to an attorney absent proof of representation.

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 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.

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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer proved mailing of the IME notices and nonappearance, and the provider raised no triable issue on reasonableness of the requests or the failure to attend.

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, 93 (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.

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.
Inwood Hill Med., P.C. v General Assur. Co. (2005 NY Slip Op 25437)An injured person's failure to attend reasonably requested IMEs breaches a condition precedent to no-fault coverage.
Marina v Praetorian Ins. Co. (2010 NY Slip Op 51292(U))The insurer established mailing of IME notices and the assignors' nonappearances, defeating coverage for the provider's claims.

Cited by

A label shows how the later decision treated this one.

American Tr. Ins. Co. v Leon (2013 NY Slip Op 08124) FollowedAn assignor's failure to attend an IME breaches a condition of coverage and does not require a timely denial.

Similar decisions

Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51677(U))The insurer established proper mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue.
Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))The insurer established timely and proper mailing of IME notices and the assignor's nonappearance, without a triable rebuttal.
Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))The insurer established timely mailing of IME notices and the assignor's repeated nonappearance through affidavits based on personal knowledge.
Ortho Passive Motion, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51364(U))The insurer established timely IME notices, the assignor's nonappearance, and timely denials after receipt of requested verification.
East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))The insurer proved mailing of the IME notices, timely mailing of the denials, and the assignor's failure to attend the scheduled IMEs. An employee of the scheduling company established mailing through its standard office practices and procedures.