November 13, 2020
Lenex Servs., Inc. v Global Liberty Ins. of N.Y. (2020 NY Slip Op 51382(U))
https://www.beynensonlaw.com/case-law/lenex-servs-inc-v-global-liberty-ins-of-n-y-2020-ny-slip-op51382u/
- Decided
- November 13, 2020
- Citation
- 2020 NY Slip Op 51382(U) · 69 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- 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 Lenex Servs., Inc. v Global Liberty Ins. of N.Y. (2020 NY Slip Op 51382(U))
| Lenex Servs., Inc. v Global Liberty Ins. of N.Y. |
| 2020 NY Slip Op 51382(U) [69 Misc 3d 145(A)] |
| Decided on November 13, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2019-133 K C
against
Global Liberty Ins. of NY, Appellant.
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered November 27, 2018. The order, insofar as appealed from, denied defendant’s 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).
Contrary to defendant’s contention, defendant’s moving papers were insufficient to establish that the letters scheduling IMEs had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020
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 the insurer's moving papers insufficient to establish that the IME scheduling letters had been properly addressed and mailed.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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's IME no-show defense failed because its moving papers did not establish that the IME scheduling letters were properly addressed and mailed, so the IMEs were not shown duly scheduled.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- 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.
Similar decisions
- 21st Century Pharm., Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51377(U))The insurer established timely mailing of IME scheduling letters and the assignor's failure to appear for the duly scheduled examinations.
- Lenex Servs., Inc. v Travelers Ins. (2019 NY Slip Op 51814(U))The insurer's summary judgment motion dismissing the provider's claims for failure to appear at scheduled EUOs was granted and upheld.
- Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51688(U))The insurer's IME notices used a proper address because it matched the assignor's sworn claim forms, despite omitting an apartment number.
- Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51006(U))The insurer established timely mailing of IME notices and the assignor's nonappearance, warranting dismissal of the claim at issue.
- Silver Lotus Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51368(U))The insurer's proof established proper mailing of IME scheduling letters and the assignor's nonappearance at the scheduled IMEs. The provider appealed summary judgment dismissing its action for assigned first-party no-fault benefits on the IME nonappearance defense.