July 21, 2010

Marina v Praetorian Ins. Co. (2010 NY Slip Op 51292(U))

https://www.beynensonlaw.com/case-law/marina-v-praetorian-ins-co-2010-ny-slip-op-51292u/

Court: Appellate Term, First Department
Decided: July 21, 2010
Citation: 2010 NY Slip Op 51292(U) · 28 Misc 3d 132(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: IME no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Marina v Praetorian Ins. Co., 28 Misc 3d 132(A), 2010 NY Slip Op 51292(U) (App Term, 1st Dept 2010)

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 established mailing of IME notices and the assignors' nonappearances, defeating coverage for the provider's claims. In the assigned no-fault action, the provider failed to raise a triable issue concerning either the reasonableness of the IME requests or the assignors' failure to attend. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and Inwood Hill Med. v General Assurance Co., compliance was a condition precedent to coverage. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint.

Reported in New York Official Reports at Marina v Praetorian Ins. Co. (2010 NY Slip Op 51292(U))

[*1]

Marina v Praetorian Ins. Co.

2010 NY Slip Op 51292(U) [28 Misc 3d 132(A)]

Decided on July 21, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570206/10.

Galperin Marina, MD a/a/o Shantina Hunter, Carol Robinson, Plaintiff-Respondent,
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated April 28, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), dated April 28, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignors and that the assignors failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. v General Assurance Co., 10 Misc 3d 18, 20 [2005]). Thus, defendant was entitled to summary judgment dismissing the complaint based upon plaintiff’s failure to comply with a condition precedent to coverage (see id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: July 21, 2010

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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer proved prima facie that it mailed the IME notices to the assignors and that they failed to appear, and the provider raised no triable issue on reasonableness or nonattendance.

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

Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 93 (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.
Inwood Hill Med., P.C. v General Assur. Co. (2005 NY Slip Op 25437) FollowedAn injured person's failure to attend reasonably requested IMEs breaches a condition precedent to no-fault coverage.

Cited by

A label shows how the later decision treated this one.

Excel Radiology Serv., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 50751(U)) FollowedThe insurer's IME-based summary judgment motion was denied for failure to establish notice mailing and the assignor's nonappearance.
Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))The insurer established mailing of the IME notices and the assignor's nonappearance, while the provider raised no triable issue.

Similar decisions

Coast Med. Diagnostic, PC v Praetorian Ins. Co. (2013 NY Slip Op 50381(U))The insurer established timely and proper mailing of IME notices and the assignor's failure to appear, warranting summary judgment.
Shore Med. Diagnostic, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52343(U))The insurer established mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue.
Seacoast Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52354(U))The insurer established timely and proper IME and EUO notices and the assignor's nonappearance, warranting dismissal.
Searay Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51383(U))The insurer established timely and proper mailing of IME notices and the assignor's failure to appear, warranting summary judgment.
MDJ Med., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50895(U))The insurer proved timely mailing of IME and EUO notices and the assignor's repeated nonappearances.