May 18, 2015

Harmonic Physical Therapy v Encompass Home & Auto Ins. Co. (2015 NY Slip Op 50733(U))

https://www.beynensonlaw.com/case-law/harmonic-physical-therapy-v-encompass-home-auto-ins-co-2015-nyslip-op-50733u/

Court: Appellate Term, First Department
Decided: May 18, 2015
Citation: 2015 NY Slip Op 50733(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: IME no-show
Legal questions: No-show defense: insurer's proof · Proof of mailing (see the maps)

Cite as

Harmonic Physical Therapy v Encompass Home & Auto Ins. Co., 2015 NY Slip Op 50733(U) (App Term, 1st Dept 2015)

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 proved the assignor's IME nonappearance through sworn statements based on personal knowledge of office practices and policies. The scheduled physician's affirmation and the IME scheduler's employee affidavit supplied competent proof of nonappearance, and the insurer also established timely and proper mailing of notices to the assignor and counsel. Unlike the proof in Alrof, Inc. v Safeco Natl. Ins. Co., the affiants demonstrated personal knowledge of the relevant practices. The provider raised no factual issue about attendance, mailing or reasonableness of the notices. Under CPLR 5517 (b), the Appellate Term, First Department, treated the appeal as taken from the subsequent reargument order, reversed that order and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Harmonic Physical Therapy v Encompass Home & Auto Ins. Co. (2015 NY Slip Op 50733(U))

Harmonic Physical Therapy, a/a/o Shamel Campbell, Plaintiff-Respondent,
against
Encompass Home and Auto Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered November 14, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Appeal from order (Gerald Lebovits, J.), entered November 14, 2013, deemed, pursuant to CPLR 5517(b), to be taken from the subsequent order (same court and Judge), entered July 17, 2014, which, upon reargument, adhered to the original determination denying defendant’s motion for summary judgment dismissing the complaint, and so considered, order 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 this action seeking recovery of first-party no-fault benefits by submitting evidence establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, and that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]).

Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler attesting to the affiants’ personal knowledge of their office practices and policies in situations where an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424). Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]), relied upon by the motion court, does not warrant a contrary result, since in that case the affiant did not demonstrate personal knowledge of the law firms’s practices and procedures in establishing appearances at scheduled examinations under oath (compare Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; accord [*2]Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]).

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 Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 18, 2015

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.

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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Reversing the lower court, held the examining physician's affirmation and the IME scheduler employee's affidavit, based on personal knowledge of office no-show practices, competent proof of nonappearance; the IME notices were proved mailed.

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

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. 2 decisions in other departments that cite or are cited by this one are on the full map.

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 (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 that it timely and properly mailed the IME notices to the assignor and his counsel.

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

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.

American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273) FollowedFailure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness.
Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) DistinguishedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.
Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U)) Contrasted (cf., but see)The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921)Failure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.
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.

Cited by

A label shows how the later decision treated this one.

S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U)) FollowedThe insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices.
MRJA Radiology, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51381(U)) FollowedThe insurer established the assignor's IME nonappearance through the scheduled physician's affirmation and the scheduler employee's affidavit.
Alfa Med. Supplies, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 51847(U))An insurer may request IMEs before receiving claim forms and deny claims retroactively when the assignor fails to appear.

Similar decisions

Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51597(U))The insurer proved mailing of the IME notices and the assignor's nonappearance, and the provider failed to raise a triable issue.
Sunrise Acupuncture, P.C. v Encompass Auto & Home Ins. Co. (2014 NY Slip Op 51082(U))The insurer established timely mailing of IME notices and the assignor's nonappearance through affidavits describing office procedures.
SMB Med., P.C. v State Farm Mut. Ins. Co. (2014 NY Slip Op 51853(U))The insurer proved the assignor's IME nonappearance through evidence of office practices and timely mailing of the notices.
Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))The insurer established timely mailing of IME notices and the assignor's repeated nonappearance through affidavits based on personal knowledge.
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.