May 3, 2019
Health Evolve Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50691(U))
https://www.beynensonlaw.com/case-law/health-evolve-acupuncture-p-c-v-allstate-ins-co-2019-ny-slip-op50691u/
- Decided
- May 3, 2019
- Citation
- 2019 NY Slip Op 50691(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
- Legal questions
- No-show defense: insurer's proof (see the maps)
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 Health Evolve Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50691(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Appellant.
Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. Diamond Law Group, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 16, 2016. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, insofar as is relevant to this appeal, defendant cross-moved for summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). The Civil Court denied defendant’s cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether plaintiff’s [*2]assignor had failed to appear for the scheduled IMEs.
The affirmations and affidavits defendant submitted from the medical providers who were to perform the IMEs of plaintiff’s assignor were sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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 Dept, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which defendant had denied on the ground that plaintiff’s assignor had failed to appear for IMEs is granted.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019
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.
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 affirmations and affidavits of the medical providers who were to perform the IMEs sufficient to establish the assignor's nonappearance, the only issue left for trial, so the insurer was granted summary judgment on those claims.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
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.
- Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U)) FollowedThe insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
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.
- Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))The insurer failed to establish timely mailing of denials supporting its defense that the assignor missed scheduled IMEs. The insurer sought summary judgment dismissing the first through fourth causes of action in an assigned no-fault benefits action.
- IMA Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50926(U))The insurer's EUO proof lacked personal knowledge, and the provider failed to establish that the nonappearance defense lacked legal merit.
- Acupuncture Now, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51596(U))The insurer's cross motion for summary judgment dismissing the claims for the assignor's IME nonappearance was upheld on appeal.
- 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.