May 6, 2013
Infinity Health Prods., Ltd. v Redland Ins. Co. (2013 NY Slip Op 50751(U))
https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-redland-ins-co-2013-ny-slip-op50751u/
- Decided
- May 6, 2013
- Citation
- 2013 NY Slip Op 50751(U) · 39 Misc 3d 140(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Distinguished in 1 and followed in 2 later decisions (see Cited by)
- Legal questions
- Proof of mailing · 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 Infinity Health Prods., Ltd. v Redland Ins. Co. (2013 NY Slip Op 50751(U))
| Infinity Health Prods., Ltd. v Redland Ins. Co. |
| 2013 NY Slip Op 50751(U) [39 Misc 3d 140(A)] |
| Decided on May 6, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-454 K C.
against
Redland Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 22, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant alleged in support of its cross motion that plaintiff’s assignor had breached a condition precedent to coverage in that she had failed to appear for duly scheduled independent medical examinations (IMEs). The court found that defendant had mailed the IME scheduling letters to the wrong address.
On appeal, defendant’s sole argument is that it raised a triable issue of fact and made a prima facie showing of entitlement to summary judgment by submitting sufficient proof that it had properly mailed the IME scheduling letters and that plaintiff’s assignor had failed to appear. Regarding the address to which the IME scheduling letters were mailed, defendant alleges that [*2]“[t]he IME scheduling notices were mailed to the assignor’s attorney and copied to the assignor at the address (including zip code) that the assignor provided.” However, a review of the file reveals that plaintiff’s assignor’s zip code was listed as 10469 on both plaintiff’s claim form and the assignment of benefits submitted by plaintiff to the court in support of its motion for summary judgment, while the IME scheduling letters and the postmarked mailing logs submitted by defendant list the zip code as 10468. Only proof of proper mailing gives rise to a presumption of receipt (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Furthermore, there is nothing in the record to suggest that plaintiff’s assignor was represented by the attorney to whom the IME scheduling letters were also sent. Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled (cf. Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2006]).
Accordingly, the order is affirmed.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013
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.
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 no presumption of receipt arose because the IME letters and mailing logs used a zip code different from the assignor's on the claim form and assignment, and the attorney copied was not shown to represent the assignor.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (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
Held the insurer failed to show the IMEs were properly scheduled because its letters went to a wrong zip code and to an attorney not shown to represent the assignor.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Star Med. Servs., P.C. v Allstate Ins. Co. (2006 NYSlipOp 50344(U)) Contrasted (cf., but see)The insurer's misaddressed EUO demand did not toll its denial deadline, and EUO transcripts failed to support its coverage defense.
Cited by
A label shows how the later decision treated this one.
- Canon Chiropractic P.C. v MVAIC (2013 NY Slip Op 52044(U)) DistinguishedMVAIC proved lack of coverage despite mailing qualification letters to the assignor at the incorrect address supplied on the provider's bills.
- Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50952(U)) FollowedThe insurer failed to establish proper mailing of IME notices because the record showed conflicting addresses and no confirmed attorney representation.
- Pierre J. Renelique, M.D., P.C. v Park Ins. Co. (2018 NY Slip Op 50780(U)) FollowedThe insurer failed to establish proper IME scheduling because its letters went to an address different from the one on the NF-3 form.
- Compas Med., P.C. v 21st Century Ins. Co. (2015 NY Slip Op 50388(U))The insurer's dismissal proof failed because receipt of one claim was disputed and mailing of the remaining denials was not established.
Similar decisions
- Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51955(U))The insurer established the assignor's IME nonappearance and timely mailing of scheduling letters and denials; opposition raised no triable issue.
- Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51320(U))The provider's objection that the IME notices improperly included an apartment number was unpreserved.
- By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices.
- Infinity Health Prods., Ltd. v American Tr. Ins. Co. (2011 NY Slip Op 50195(U))The insurer failed to establish that the assignor's alleged injuries did not arise from an insured incident.
- Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51523(U))The insurer established proper mailing of IME notices and the denial form, as well as the assignor's failure to attend the IMEs. The provider appealed summary judgment dismissing its assigned no-fault claim.