May 23, 2011
LDE Med. Servs., P.C. v Interboro Ins. Co. (2011 NY Slip Op 50946(U))
https://www.beynensonlaw.com/case-law/lde-med-servs-p-c-v-interboro-ins-co-2011-ny-slip-op-50946u/
- Decided
- May 23, 2011
- Citation
- 2011 NY Slip Op 50946(U) · 31 Misc 3d 146(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- 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 LDE Med. Servs., P.C. v Interboro Ins. Co. (2011 NY Slip Op 50946(U))
| LDE Med. Servs., P.C. v Interboro Ins. Co. |
| 2011 NY Slip Op 50946(U) [31 Misc 3d 146(A)] |
| Decided on May 23, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2009-2047 Q C.
against
Interboro Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 14, 2009, deemed from a judgment of the same court entered September 14, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 14, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $262.66.
ORDERED that the judgment is affirmed, without 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. In support of its cross motion and in opposition to plaintiff’s motion, defendant asserted that it had timely denied plaintiff’s claims on the ground that the assignor had failed to attend duly scheduled independent medical examinations (IMEs) and that plaintiff’s motion for summary judgment was premature because plaintiff had failed to respond to defendant’s discovery demands. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, finding that since defendant’s first IME scheduling letter had been mailed prior to defendant’s receipt of plaintiff’s claim forms, it was a nullity and, as a result, defendant had failed to establish that it had sent a valid IME scheduling letter and a follow-up scheduling letter. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).
Contrary to the Civil Court’s determination, “appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim [*2]form is submitted” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, although the first IME scheduling letter was sent to the assignor before defendant received plaintiff’s claim forms, the scheduling letter was not a nullity (id.).
However, since defendant’s moving papers did not contain evidence in admissible form from anyone with personal knowledge of the assignor’s nonappearances at the IMEs, defendant failed to establish that the assignor had failed to appear at the IMEs (see id.; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]). Although defendant annexed to its reply papers affirmations from each of the doctors who were to perform the assignor’s IMEs, in which they attested to the nonappearance of the assignor at the scheduled IMEs, said proof was improperly submitted for the first time in defendant’s reply papers (see Bednoski v County of Suffolk, 67 AD3d 616 [2009]; Haggerty v Quast, 48 AD3d 629 [2008]; Jefferson v Netusil, 44 AD3d 621 [2007]). Consequently, defendant’s cross motion for summary judgment was properly denied.
While defendant argues that plaintiff’s motion for summary judgment should have been denied as premature since plaintiff failed to provide responses to defendant’s discovery demands, defendant failed to show that discovery was needed in order to establish the existence of a triable issue of fact (see CPLR 3212 [f]; Delta Diagnostic Radiology, P.C. v Inteboro Ins Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, plaintiff’s motion for summary judgment was properly granted.
In light of the foregoing, the judgment is affirmed.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: May 23, 2011
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 a pre-claim IME letter was not a nullity, but the insurer failed to prove the nonappearances because its moving papers had no one with personal knowledge and the doctors' affirmations came improperly in reply.
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. 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.
- Vista Surgical Supplies, Inc. v Autoone Ins. Co. (2008 NY Slip Op 51460(U)) FollowedThe insurer obtained dismissal of an unverified claim as premature but failed to prove IME nonappearance on a separate claim.
- Vista Surgical Supplies, Inc. v New York Cent. Ins. Co. (2007 NY Slip Op 50165(U)) FollowedThe insurer's examiner affidavit failed to establish mailing of pre-claim IME notices or the assignor's alleged nonappearances.
- Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2009 NY Slip Op 52222(U)) FollowedThe insurer waived its late-claim defense by failing to advise the provider that reasonable justification could excuse late submission.
Cited by
A label shows how the later decision treated this one.
- Longevity Med. Supply, Inc. v Nationwide Ins. (2020 NY Slip Op 51133(U)) FollowedAn assignor must attend a requested EUO whether the insurer demands it before or after submission of the claim form.
- Tian Shan Acupuncture PC v Global Liberty Ins. Co. (2019 NY Slip Op 50728(U)) FollowedThe insurer established timely IME requests and denials and the assignor's failure to appear for two IMEs. The Civil Court, Bronx County, granted the insurer summary judgment dismissing the complaint with prejudice, denied its remaining grounds as moot, and denied the provider's cross motion.
- Alrof, Inc. v Country Wide Ins. Co. (2011 NY Slip Op 52297(U))The provider failed to establish entitlement to summary judgment, while the insurer lacked admissible proof of the assignor's IME nonappearances.
- Regal Acupuncture, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50604(U))EUO attendance is required whether the insurer demands the EUO before or after submission of the claim form.
Similar decisions
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))The insurer's affidavits established timely mailing of the IME notices and denials and the assignor's failure to appear.
- VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51074(U))The insurer proved timely mailing of IME notices and a denial, as well as the assignor's failure to attend the scheduled IMEs. An employee of the outside scheduling entity established mailing of the notices through standard office practices and procedures.
- Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))The insurer established timely IME notices and the assignor's nonappearance, defeating the provider's claims.
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations.