June 6, 2016

GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50912(U))

https://www.beynensonlaw.com/case-law/gl-acupuncture-p-c-v-new-york-cent-mut-fire-ins-co-2016-ny-slip-op50912u/

Court: Appellate Term, Second Department
Decided: June 6, 2016
Citation: 2016 NY Slip Op 50912(U) · 52 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: IME no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 52 Misc 3d 127(A), 2016 NY Slip Op 50912(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 failed to prove the assignor's IME nonappearance through someone with personal knowledge. The insurer denied the provider's assigned no-fault claims on the ground that the assignor failed to appear for IMEs, and the Civil Court granted summary judgment dismissing the complaint. Because the insurer submitted no proof from someone with personal knowledge of nonappearance, it failed to establish prima facie entitlement to summary judgment. The Appellate Term, Second Department, reversed the order and denied the insurer's motion, expressly reaching no other issue.

Reported in New York Official Reports at GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50912(U))

[*1]

GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co.

2016 NY Slip Op 50912(U) [52 Misc 3d 127(A)]

Decided on June 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1771 Q C

GL Acupuncture, P.C., as Assignee of SAM D. COSMORE, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered June 26, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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.

Defendant denied the claims at issue based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). However, defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs in question (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As a result, defendant failed to establish its prima facie entitlement to summary judgment. In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 06, 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.

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 nonappearance by someone with personal knowledge

Held the insurer failed to make a prima facie showing on its IME no-show defense because it submitted no proof by someone with personal knowledge of the assignor's nonappearance.

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

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) FollowedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.

Similar decisions

NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
Gl Acupuncture, P.C. v Maya Assur. Co. (2016 NY Slip Op 50310(U))The insurer failed to establish duly scheduled IMEs because its affidavit did not adequately prove mailing of the notices.
Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.
IMA Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51633(U))The insurer's chiropractor failed to establish the assignor's nonappearance at both scheduled IMEs by personal knowledge or other proper proof.
Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted.