March 2, 2007
Great Wall Acupuncture v Utica Mut. Ins. Co. (2007 NY Slip Op 50389(U))
https://www.beynensonlaw.com/case-law/great-wall-acupuncture-v-utica-mut-ins-co-2007-ny-slip-op-50389u/
- Decided
- March 2, 2007
- Citation
- 2007 NY Slip Op 50389(U) · 14 Misc 3d 144(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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 Great Wall Acupuncture v Utica Mut. Ins. Co. (2007 NY Slip Op 50389(U))
| Great Wall Acupuncture v Utica Mut. Ins. Co. |
| 2007 NY Slip Op 50389(U) [14 Misc 3d 144(A)] |
| Decided on March 2, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2006-331 K C.
against
Utica Mutual Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 6, 2006, deemed an appeal from the judgment entered on January 30, 2006 (see Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the January 6, 2006 order which granted plaintiff’s motion for summary judgment, awarded plaintiff the total sum of $10,088.84.
Judgment affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed, claiming, inter alia, that plaintiff’s assignors failed to appear for scheduled independent medical examinations (IMEs), and that there was an issue of fact as to whether the alleged injuries were caused by an insured incident. The court below granted plaintiff’s motion, and a judgment was subsequently entered. On appeal, defendant reiterates the arguments which it made in the court below, i.e., that plaintiff’s assignors, by failing to appear for scheduled IMEs, violated a condition precedent to coverage under the policy, and that defendant had presented a triable issue of fact regarding fraud sufficient to defeat plaintiff’s motion.
The claims at issue were denied by defendant based upon plaintiff’s assignors’ failure to attend scheduled IMEs. Defendant, in opposition to plaintiff’s motion for summary judgment, submitted affidavits from a claims representative and an investigator from its Special Investigative Unit. Neither affiant, however, demonstrated personal knowledge of the mailing of defendant’s verification requests or described a standard office mailing procedure giving rise to a [*2]presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also Ocean Diagnostic Imaging P.C. v New York Central Mut. Fire Ins. Co., 9 Misc 3d 138[A], 2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]; cf. Amaze Med. Supply Inc. v General Assur. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50307[U] [App Term, 2d & 11th Jud Dists]). Thus, defendant failed to demonstrate by competent evidence that it mailed the IME requests, or any other documents which would have tolled the 30-day claim determination period (see Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]). We further note that, in any event, defendant submitted no evidence from anyone with personal knowledge of the nonappearances (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).
While defendant also claimed that plaintiff’s assignors were engaged in fraudulent conduct by virtue of their having failed to attend scheduled IMEs as well as by having made “material misrepresentation[s]” in the presentation of the claims, its submissions were insufficient to establish a defense based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). The investigatory reports upon which defendant’s investigator relied were unsworn, and the statements in the affidavit of defendant’s investigator were conclusory (see e.g. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 12 Misc 3d 139[A], 2006 NY Slip Op 51334[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co.,10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]). In view of the foregoing, the judgment is affirmed.
Pesce, P.J., and Belen, J., concur.
Golia, J., concurs, in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:
I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: March 2, 2007
Legal questions (4)
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 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 claims representative's and investigator's affidavits insufficient because neither showed personal knowledge of mailing the IME requests or described a standard office mailing procedure creating a presumption of mailing.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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 failed to prove the scheduling letters were mailed or properly addressed
Rejected the IME no-show defense because the insurer did not prove the IME requests were mailed and, in any event, offered no one with personal knowledge of the nonappearances.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it
Held the insurer's fraud defense insufficient to show a founded belief that the injuries did not arise from an insured incident because the investigator relied on unsworn reports and made conclusory statements.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 80 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Applied the preclusion rule to the IME no-show defense, holding that without proof the IME requests were mailed the 30-day period was not tolled, so the insurer was precluded from most defenses.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 51772(U))The insurer failed to prove mailing of IME requests, and its untimely denial of one claim was not supported by effective tolling.
- Amaze Med. Supply Inc. v General Assur. Co. (2006 NY Slip Op 50307(U)) Contrasted (cf., but see)The insurer's proof of pre-claim IME nonattendance raised a factual issue as to the medical necessity of the supplies.
- Fair Price Med. Supply Corp. v General Assur. Co. (2005 NY Slip Op 50256(U)) FollowedThe insurer's conclusory proof of IME requests and nonappearance failed to raise a triable issue against the provider's claim.
- 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.
- A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2006 NY Slip Op 51334(U))The insurer's incomplete denial and inadmissible fraud proof failed to defeat the health care providers' summary judgment motion.
- A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2005 NY Slip Op 25456)The providers obtained partial summary judgment because defective EUO requests and incomplete IME follow-up failed to toll denial time.
Similar decisions
- Great Wall Acupuncture, P.C. v New York Central Mutual Insurance Company (2009 NY Slip Op 50224(U))The insurer's untimely EUO request failed to toll its time to pay or deny, precluding its defense based on the provider owner's nonappearance.
- Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U))The insurer failed to submit competent proof that the assignor missed the scheduled IMEs. The IME doctor's conclusory affirmation did not adequately explain the basis for recalling, approximately two years later, that the assignor had not appeared on the scheduled dates.
- M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 51286(U))The insurer failed to prove mailing of its EUO transcript request, leaving its denials untimely and fraudulent-claim defenses precluded.
- Great Wall Acupuncture v Peerless Ins. Co. (2007 NY Slip Op 51606(U))The insurer failed to raise a triable coverage issue on its defense that the insured vehicle was not involved in the accident.
- Great Wall Acupuncture v Liberty Mut. Ins. Co. (2007 NY Slip Op 51609(U))The provider's corporate officer failed to lay a business-record foundation for its summary judgment documents.