October 11, 2011
Fiutek v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51840(U))
https://www.beynensonlaw.com/case-law/fiutek-v-clarendon-natl-ins-co-2011-ny-slip-op-51840u/
- Decided
- October 11, 2011
- Citation
- 2011 NY Slip Op 51840(U) · 33 Misc 3d 127(A)
- Posture
- Summary judgment
- Outcome
- Split result
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 Fiutek v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51840(U))
| Fiutek v Clarendon Natl. Ins. Co. |
| 2011 NY Slip Op 51840(U) [33 Misc 3d 127(A)] |
| Decided on October 11, 2011 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through November 4, 2011; it will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-2129 K C.
against
Clarendon National Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 11, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the complaint as to the claims for services rendered between August 4, 2006 and August 31, 2006, between September 5, 2006 and September 25, 2006, and between October 12, 2006 and October 23, 2006 are granted; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). Plaintiff did not submit opposition papers. The Civil Court denied defendant’s motion, finding that the exhibits annexed to defendant’s moving papers “raise[d] triable issues of fact.”
In support of its motion, defendant submitted an affidavit of the president of an independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with the standard office practices and procedures for the generation and mailing of such IME notices (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also annexed as exhibits were copies of the IME scheduling notices. In addition, defendant submitted an affidavit from the medical professional who was to [*2]perform the IMEs establishing that plaintiff’s assignor had failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Also included among defendant’s moving papers was an affidavit from its claims examiner, which set forth defendant’s standard office practices and procedures for mailing denial of claim forms. Among other things, he stated that, pursuant to defendant’s standard office practices and procedures, denial of claims forms are mailed on the date they are generated. However, with respect to plaintiff’s claim for services rendered between July 5, 2006 and July 31, 2006, while the denial of claim form pertaining to this claim is dated August 23, 2006, defendant’s claims examiner averred that it was mailed on September 26, 2006. As a result, there is an issue of fact with respect to defendant’s mailing of this denial of claim form (see Zuckerman v City of New York, 49 NY2d 557 [1980]). With respect to the remaining claims at issue, defendant’s claim examiner established that defendant’s denial of claim forms, which denied these claims based upon plaintiff’s assignor’s failure to appear for the IMEs, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).
In light of the foregoing, defendant established its prima facie entitlement to judgment as a matter of law only with respect to plaintiff’s claims for services rendered between August 4, 2006 and August 31, 2006, between September 5, 2006 and September 25, 2006, and between October 12, 2006 and October 23, 2006 (see St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co., 29 Misc 3d 127[A], 2010 NY Slip Op 51728[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and summary judgment is awarded in favor of defendant accordingly.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011
Legal questions (3)
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
Denied the insurer summary judgment on one IME no-show claim because its affidavit left an issue of fact whether that denial was timely mailed, while granting it on claims whose denials were shown timely mailed.
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: Different mailing results for different documents or claims in one decision
Found the IME letters and most denials proved mailed by office-practice affidavits, but held a triable issue on one denial dated weeks before the date the affiant said it was mailed.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 55 (this one included) are in the same category.
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 the IME no-show elements through the scheduling service's office-practice mailing affidavit and the examining professional's affidavit of nonappearance, reversing a finding of triable issues.
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.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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.
- Tuncel v Progressive Cas. Ins. Co. (2008 NY Slip Op 52455(U)) FollowedThe insurer's chiropractor established that the assignor missed an IME at the office address stated in the scheduling letters.
- St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 51728(U)) FollowedThe insurer established lack of medical necessity for the first cause of action and IME nonappearance for the other three causes.
Cited by
- TAM Med. Supply Corp. v Country Wide Ins. Co. (2017 NY Slip Op 50921(U))The insurer's conflicting claim-receipt dates prevented summary judgment on late accident notice, but the provider was compelled to give discovery.
Similar decisions
- Proscan Imaging Buffalo v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51855(U))The insurer's affidavits established timely IME notices and denials and the assignor's nonappearances, requiring dismissal.
- Jamhil Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51644(U))The insurer established timely mailing of IME notices and a denial based on the assignor's failure to appear for the scheduled IMEs. The president of the independent medical review service retained to schedule the examinations established timely mailing of the scheduling letters.
- Parkway Imaging & Diagnostic, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51853(U))The insurer's IME doctor's affirmation established the assignor's nonappearances, and the provider failed to raise a triable issue.
- Axis Chiropractic, PLLC v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50753(U))The insurer established timely mailing of IME notices and denials and the assignors' failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, affidavits from the scheduling company's president established timely mailing through standard office practices and procedures.
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement.