July 11, 2019
Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. (2019 NY Slip Op 51148(U))
https://www.beynensonlaw.com/case-law/central-park-physical-medicine-rehab-p-c-v-ids-prop-cas-ins-co-2019ny-slip-op-51148u/
- Decided
- July 11, 2019
- Citation
- 2019 NY Slip Op 51148(U) · 64 Misc 3d 135(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 Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. (2019 NY Slip Op 51148(U))
| Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. |
| 2019 NY Slip Op 51148(U) [64 Misc 3d 135(A)] |
| Decided on July 11, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2018-444 S C
against
IDS Property & Casualty Insurance Company, Appellant.
Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. Sanders Barshay Grossman, LLC (Steven J. Neuwirth of counsel), for respondent.
Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated October 12, 2017. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.
Defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) each of the examination under oath (EUO) scheduling letters by both first-class and certified mail, return receipt requested. While the District Court held that defendant had failed to establish that the follow-up EUO scheduling letter had been mailed by certified mail, that finding, even if correct, would not excuse the failure of plaintiff to appear for the duly scheduled EUOs, since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff by first-class mail had been insufficient (see MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant further demonstrated that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear for the duly scheduled EUOs. Plaintiff failed to raise a triable issue of fact in opposition to defendant’s prima facie showing.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 11, 2019
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 EUO letters proved mailed by first-class mail, so any failure to prove certified mailing of the follow-up letter did not matter; the denials were also proved timely mailed.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Reversed and held the insurer proved its EUO no-show defense: letters proved mailed by first-class mail, so certified-mail doubts did not excuse the nonappearance, which was also proved.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (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 insurer established timely mailing of denial forms based on the EUO nonappearance, as part of its defense.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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.
- MML Med. Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51792(U)) FollowedThe assignor's EUO nonappearance was not excused by apparent nondelivery of certified notices where first-class mailing was unrebutted.
- 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
- Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51598(U))The insurer failed to prove timely, proper mailing of IME scheduling letters and therefore failed to show tolling of its 30-day claim deadline.
- Sama Physical Therapy, P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 51751(U))The insurer failed to establish timely EUO scheduling for the first two claims but timely denied the third claim for nonappearance.
- Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))The insurer's proof established timely mailing of EUO notices and denials and the assignor's failure to appear for the scheduled EUOs. The insurer moved for summary judgment dismissing the provider's assigned no-fault claims.
- K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. (2019 NY Slip Op 50687(U))The insurer's EUO request was a nullity for four claims because it was sent more than 30 days after receipt.
- Prestige Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2022 NY Slip Op 50591(U))EUO scheduling letters identifying the accident date and assignor need not specify the bills to which they pertain.