May 29, 2014
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50954(U))
https://www.beynensonlaw.com/case-law/clinton-place-med-p-c-v-new-york-cent-mut-fire-ins-co-2014-ny-slipop-50954u/
- Decided
- May 29, 2014
- Citation
- 2014 NY Slip Op 50954(U) · 44 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- No-show: coverage defense or precludable? · Proof of mailing (see the maps)
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 Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50954(U))
| Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2014 NY Slip Op 50954(U) [44 Misc 3d 126(A)] |
| Decided on May 29, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-731 K C
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered February 28, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross 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 appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. The court stated that the only issue for trial was the mailing of the denial (see CPLR 3212 [g]).
A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff’s claims after plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant’s contention, such a defense is subject to preclusion if defendant’s denial of claim forms were untimely (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 29, 2014
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Rejected the insurer's contention that the IME no-show defense survives regardless of denial timeliness, holding it subject to preclusion and leaving a question of fact as to timely denial.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received (rules on the question, but another ground decided the case)
Found a question of fact as to whether the insurer timely denied the claims, the lower court having limited trial to the mailing of the denial.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Eastern Star Acupuncture, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52205(U))The insurer's IME nonappearance defense was precluded for the claim its denial form instead denied based on an IME report.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Similar decisions
- BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50632(U))An insurer need not mail initial IME scheduling letters to the provider when seeking an IME of the assignor.
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51653(U))The insurer proved timely IME notices and denials and the assignor's nonappearance, while the provider failed to raise a factual issue.
- Midisland Med., PLLC v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51983(U))The insurer failed to raise a triable issue on its IME no-show defense because it lacked an affidavit based on personal knowledge.
- 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.
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51337(U))The insurer's untimely follow-up IME notice failed to toll the claim determination period, precluding its IME and fee defenses.