September 28, 2016
Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2016 NY Slip Op 51381(U))
https://www.beynensonlaw.com/case-law/healthy-way-acupuncture-p-c-v-clarendon-natl-ins-co-2016-ny-slip-op51381u/
- Decided
- September 28, 2016
- Citation
- 2016 NY Slip Op 51381(U) · 53 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Provider 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 Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2016 NY Slip Op 51381(U))
| Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. |
| 2016 NY Slip Op 51381(U) [53 Misc 3d 131(A)] |
| Decided on September 28, 2016 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2016
PRESENT: Shulman, J.P., Gonzalez, J.
570377/16
against
Clarendon National Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered March 4, 2015, which granted defendant’s motion for summary judgment.
Per Curiam.
Order (Alexander M. Tisch, J.), entered March 4, 2015, reversed, with $10 costs, and defendant’s motion denied.
Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IME) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to state the basis of their recollection, some 8 years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: September 28, 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.
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 prove the assignor's IME nonappearance because its IME doctors' conclusory affidavits did not state the basis of their recollection, some eight years later, that the assignor did not appear.
Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 14 (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.
- 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.
- Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am. (2016 NY Slip Op 50339(U)) FollowedThe insurer failed to establish IME nonappearance through affidavits that did not explain the doctors' recollections a year later.
- Metro 8 Med. Equip., Inc. v ELRAC, Inc. (2016 NY Slip Op 50174(U)) FollowedThe insurer failed to submit competent proof that the assignor missed scheduled IMEs. The Appellate Term, First Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion.
Similar decisions
- Healthy Way Acupuncture, P.C. v Allstate Ins. Co. (2014 NY Slip Op 50841(U))An assignor's failure to attend requested IMEs permits retroactive denial of all claims, regardless of denial timeliness or initial grounds.
- New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51954(U))The insurer established IME nonappearance, the sole issue left for trial on the provider's third through sixth causes of action.
- 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.
- 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.
- Healthy Way Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51865(U))The insurer's summary judgment dismissal based on the provider's failure to appear for two scheduled EUOs was affirmed.