March 23, 2016
Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. (2016 NY Slip Op 50396(U))
https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-kemper-ins-co-2016-ny-slip-op50396u/
- Decided
- March 23, 2016
- Citation
- 2016 NY Slip Op 50396(U) · 51 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
- Legal questions
- No-show defense: insurer's proof (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 Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. (2016 NY Slip Op 50396(U))
| Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. |
| 2016 NY Slip Op 50396(U) [51 Misc 3d 130(A)] |
| Decided on March 23, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
&em;
against
Kemper Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 22, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s sole argument on appeal with respect to the merits of defendant’s motion, the affidavits submitted by defendant were sufficient to establish that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (id. at 722) and, in opposition to defendant’s motion, plaintiff did not raise a triable issue of fact, the order is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 23, 2016
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.
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's affidavits sufficient to establish the assignor's failure to appear for duly scheduled IMEs, a condition precedent to liability, and found the provider raised no triable issue.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
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.
Similar decisions
- Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51953(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy.
- Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51672(U))The insurer established timely mailing of IME notices and denials and the assignor's failure to appear for scheduled IMEs. In the provider's action for assigned no-fault benefits, the insurer proved that the scheduling letters and denial forms had been timely mailed and that the assignor had not attended the duly scheduled IMEs. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the nonappearances constituted failure to comply with a condition precedent to coverage.
- Delta Diagnostic Radiology, P.C. v Autoone Ins. Co. (2011 NY Slip Op 51839(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the no-fault policy.
- Delta Diagnostic Radiology, P.C. v Esurance (2015 NY Slip Op 50785(U))The insurer established timely EUO notices, the assignor's nonappearance at duly scheduled EUOs and timely denials on that ground.
- Delta Diagnostic Radiology, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51676(U))The insurer failed to prove EUO or IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment.