June 25, 2012
Dowd v Praetorian Ins. Co. (2012 NY Slip Op 51160(U))
https://www.beynensonlaw.com/case-law/dowd-v-praetorian-ins-co-2012-ny-slip-op-51160u/
- Decided
- June 25, 2012
- Citation
- 2012 NY Slip Op 51160(U) · 36 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show EUO no-show
- Legal questions
- No-show defense: insurer's proof · 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 Dowd v Praetorian Ins. Co. (2012 NY Slip Op 51160(U))
| Dowd v Praetorian Ins. Co. |
| 2012 NY Slip Op 51160(U) [36 Misc 3d 126(A)] |
| Decided on June 25, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570131/12.
against
Praetorian Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered October 3, 2011, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Ben R. Barbato, J.), entered October 3, 2011, reversed, with $10 costs, motion granted and complaint dismissed. 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) and
examinations under oath (EUOs) 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]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins.
Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically 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: June 25, 2012
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.
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 IME and EUO notices and the assignor's nonappearance, and the provider did not specifically deny nonappearance or contest mailing or reasonableness.
Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 92 (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 insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the insurer established timely and proper mailing of the IME and EUO scheduling notices to the assignor, and the provider raised no triable issue as to the mailing.
Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (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.
Similar decisions
- MDJ Med., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50895(U))The insurer proved timely mailing of IME and EUO notices and the assignor's repeated nonappearances.
- Coast Med. Diagnostic, PC v Praetorian Ins. Co. (2013 NY Slip Op 50381(U))The insurer established timely and proper mailing of IME notices and the assignor's failure to appear, warranting summary judgment.
- 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.
- 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.
- 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.