March 20, 2013

Coast Med. Diagnostic, PC v Praetorian Ins. Co. (2013 NY Slip Op 50381(U))

https://www.beynensonlaw.com/case-law/coast-med-diagnostic-pc-v-praetorian-ins-co-2013-ny-slip-op50381u/

Court: Appellate Term, First Department
Decided: March 20, 2013
Citation: 2013 NY Slip Op 50381(U) · 38 Misc 3d 148(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: IME no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Coast Med. Diagnostic, PC v Praetorian Ins. Co., 38 Misc 3d 148(A), 2013 NY Slip Op 50381(U) (App Term, 1st Dept 2013)

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 timely and proper mailing of IME notices and the assignor's failure to appear, warranting summary judgment. The provider sought assigned first-party no-fault benefits, and Civil Court denied the insurer's motion to dismiss the complaint. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the insurer's proof established its prima facie entitlement to dismissal. The provider did not deny the nonappearance or raise a triable issue concerning it, the mailing, or the reasonableness of the notices. The Appellate Term, First Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Coast Med. Diagnostic, PC v Praetorian Ins. Co. (2013 NY Slip Op 50381(U))

[*1]

Coast Med. Diagnostic, PC v Praetorian Ins. Co.

2013 NY Slip Op 50381(U) [38 Misc 3d 148(A)]

Decided on March 20, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570755/12.

Coast Medical Diagnostic, PC a/a/o Otis Johnson, Plaintiff-Respondent, – –
against
Praetorian 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 April 25, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered April 25, 2011, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 20, 2013

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

Held the insurer proved timely and proper mailing of the IME notices and the assignor's nonappearance, and the provider raised no issue on nonappearance, mailing or reasonableness of the notices.

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.

Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) Contrasted (cf., but see)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.

Cited by

A label shows how the later decision treated this one.

Tian Shan Acupuncture PC v Global Liberty Ins. Co. (2019 NY Slip Op 50728(U)) FollowedThe insurer established timely IME requests and denials and the assignor's failure to appear for two IMEs. The Civil Court, Bronx County, granted the insurer summary judgment dismissing the complaint with prejudice, denied its remaining grounds as moot, and denied the provider's cross motion.

Similar decisions

Seacoast Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52354(U))The insurer established timely and proper IME and EUO notices and the assignor's nonappearance, warranting dismissal.
Shore Med. Diagnostic, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52343(U))The insurer established mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue.
S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))The insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices.
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.
RDB Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50301(U))The insurer proved the assignor's IME nonappearance and proper notice, warranting dismissal of specified no-fault claims.