April 28, 2011

Excel Radiology Serv., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 50751(U))

https://www.beynensonlaw.com/case-law/excel-radiology-serv-p-c-v-utica-mut-ins-co-2011-ny-slip-op50751u/

Court: Appellate Term, First Department
Decided: April 28, 2011
Citation: 2011 NY Slip Op 50751(U) · 31 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: IME no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Excel Radiology Serv., P.C. v Utica Mut. Ins. Co., 31 Misc 3d 138(A), 2011 NY Slip Op 50751(U) (App Term, 1st Dept 2011)

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's IME-based summary judgment motion was denied for failure to establish notice mailing and the assignor's nonappearance. The Appellate Term, First Department, affirmed the denial of dismissal. Relying on Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the court found the insurer's prima facie showing deficient, requiring denial regardless of the sufficiency of the provider's opposition.

Reported in New York Official Reports at Excel Radiology Serv., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 50751(U))

[*1]

Excel Radiology Serv., P.C. v Utica Mut. Ins. Co.

2011 NY Slip Op 50751(U) [31 Misc 3d 138(A)]

Decided on April 28, 2011

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through May 11, 2011; it will not be published in the printed Official Reports.

Decided on April 28, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ
571044/10.

Excel Radiology Service, P.C. a/a/o Wilmer Centeno, Plaintiff-Respondent, – –
against
Utica Mutual 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 June 7, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered June 7, 2010, affirmed, with $10 costs.

In this action to recover first-party no-fault medical benefits, defendant’s motion for summary judgment was properly denied since it failed to establish, prima facie, that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]; cf. Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 28, 2011

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.

Proof of mailing

Open 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 proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer failed to establish prima facie that the IME notices were properly mailed to the assignor.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itDistinguished or limited

Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 22 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

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 failed to prove the scheduling letters were mailed or properly addressed

Denied the insurer summary judgment because it did not prove that the IME notices were properly mailed or that the assignor failed to appear.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 13 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

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.
Marina v Praetorian Ins. Co. (2010 NY Slip Op 51292(U)) FollowedThe insurer established mailing of IME notices and the assignors' nonappearances, defeating coverage for the provider's claims.
Inwood Hill Med., P.C. v General Assur. Co. (2005 NY Slip Op 25437) Contrasted (cf., but see)An injured person's failure to attend reasonably requested IMEs breaches a condition precedent to no-fault coverage.

Cited by

Broad St. Acupuncture, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 50453(U))The insurer obtained dismissal of paid portions of two claims, but inadequate IME proof left the provider entitled to judgment on another claim.

Similar decisions

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))The insurer established mailing of the IME notices and the assignor's nonappearance, while the provider raised no triable issue.
Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52208(U))The insurer established mailing of the IME notices and the assignor's nonappearance, warranting summary judgment dismissing the provider's claims.
Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51725(U))The insurer proved timely mailing of IME notices and denials and the assignor's failure to attend the duly scheduled IMEs. An employee of the company retained to schedule the IMEs described standard office mailing practices establishing timely mailing of the scheduling letters.
Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51677(U))The insurer established proper mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue.
Excel Med. & Diagnostic, P.C. v Park Ins. Co. (2019 NY Slip Op 50989(U))The scheduled IME doctor's affirmation established the assignor's nonappearance, resolving the sole issue reserved for trial.