November 9, 2015

IMA Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51633(U))

https://www.beynensonlaw.com/case-law/ima-acupuncture-p-c-v-praetorian-ins-co-2015-ny-slip-op-51633u/

Court: Appellate Term, Second Department
Decided: November 9, 2015
Citation: 2015 NY Slip Op 51633(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: IME no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

IMA Acupuncture, P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51633(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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's chiropractor failed to establish the assignor's nonappearance at both scheduled IMEs by personal knowledge or other proper proof. The insurer cross-moved for summary judgment dismissing assigned no-fault claims on the ground that it had timely and properly denied them for IME nonappearance. The sworn statement of the chiropractor scheduled to conduct the examinations did not adequately prove both missed appointments. The insurer therefore failed to establish entitlement to dismissal as a matter of law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the cross motion and leaving nonappearance as the sole issue for trial under CPLR 3212 (g).

Reported in New York Official Reports at IMA Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51633(U))

[*1]

IMA Acupuncture, P.C. v Praetorian Ins. Co.

2015 NY Slip Op 51633(U)

Decided on November 9, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1153 Q C

IMA Acupuncture, P.C. as Assignee of ELISKA DUPUY, Respondent,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 22, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). By order entered April 22, 2013, insofar as appealed from and as limited by the brief, the Civil Court denied defendant’s cross motion and held that the sole issue for trial was whether plaintiff’s assignor had failed to appear for duly scheduled IMEs (see CPLR 3212 [g]).

While defendant submitted a sworn statement by the chiropractor who had been scheduled to perform the IMEs, the chiropractor failed to demonstrate by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. 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]), the nonappearance of plaintiff’s assignor for both of the IMEs. Therefore, defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: November 09, 2015

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 scheduled chiropractor's sworn statement failed to show by personal knowledge or other appropriate means the assignor's nonappearance at both IMEs, so the insurer was not entitled to summary judgment.

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

Of the 851 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.

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))The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Quality Health Prods. v Hertz Claim Mgt. Corp (2012 NY Slip Op 51722(U))The insurer proved the assignors' IME nonappearances through affidavits from a chiropractor and orthopedist with personal knowledge.

Similar decisions

GL Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50912(U))The insurer failed to prove the assignor's IME nonappearance through someone with personal knowledge.
Easy Care Acupuncture P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51524(U))An insurer may request IMEs before a provider submits claim forms under 11 NYCRR 65-1.1.
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.
S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))The insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices.
EMA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51428(U))The insurer was granted summary judgment dismissing the complaint based on the assignor's failure to attend duly scheduled IMEs. The Appellate Term, Second Department, affirmed, finding the insurer's proof sufficient to establish presumptive mailing of the IME scheduling letters and denial forms and the assignor's nonappearance.