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June 9, 2014

MDJ Med., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50895(U))

https://www.beynensonlaw.com/case-law/mdj-med-p-c-v-praetorian-ins-co-2014-ny-slip-op-50895u/

Court
Appellate Term, First Department
Decided
June 9, 2014
Citation
2014 NY Slip Op 50895(U) · 43 Misc 3d 145(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
IME no-show EUO no-show Timeliness and preclusion
Legal questions
Proof of mailing · No-show defense: insurer's proof (see the maps)
Cite as
MDJ Med., P.C. v Praetorian Ins. Co., 43 Misc 3d 145(A), 2014 NY Slip Op 50895(U) (App Term, 1st Dept 2014)

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 proved timely mailing of IME and EUO notices and the assignor's repeated nonappearances. The examining physicians' sworn affidavits established personal knowledge of the missed IMEs and their ordinary-course reports to the insurer's third-party biller. The EUO notices used the address on the provider's claim form, and the provider offered no persuasive explanation for their return as unclaimed. The provider did not specifically deny nonappearance or raise a factual issue concerning mailing or the reasonableness of the notices. The Appellate Term, First Department, reversed the order, denied the provider's cross motion, and granted the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at MDJ Med., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50895(U))

[*1]
MDJ Med., P.C. v Praetorian Ins. Co.
2014 NY Slip Op 50895(U) [43 Misc 3d 145(A)]
Decided on June 9, 2014
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 9, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570217/14
MDJ Medical, P.C. a/a/o Salmon Tabari, Plaintiff-Appellant, –

against

Praetorian Insurance Company, Defendant-Respondent.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered September 26, 2013, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Ruben Franco, J.), entered September 26, 2013, reversed, with $10 costs, plaintiff’s cross motion denied and defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting competent evidence establishing the proper and timely mailing of the notices scheduling the assignor’s independent medical examinations and examinations under oath, as well as the assignor’s failure to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]). With respect to the latter, defendant’s moving submission, including the sworn affidavits of the scheduled examining physicians, set forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the duly scheduled IMEs, and the affiants’ actions, “in the ordinary course of business,” in advising defendants’ third-party biller of such nonappearance. As to defendant’s mailing of the EUO notices, we note that the assignor’s address as listed in the notices was consistent with that appearing on the claim form submitted by the plaintiff medical provider, which, notably, offered no persuasive explanation, either below or on appeal, as to why the notices were returned to defendant as “unclaimed.” In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concurI concurI concur
Decision Date: June 09, 2014

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.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the insurer proved mailing of the EUO notices to the address on the claim form; their return as unclaimed, unexplained by the provider, did not defeat the showing.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 18
  • Appellate TermApp Term 80
  • Trial courtsTrial 34
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2022, Appellate Division: 1 decision (1 Insurer proved mailing)2020, Appellate Division: 1 decision (1 Insurer proved mailing)2019, Appellate Division: 1 decision (1 Insurer failed to prove)2016, Appellate Division: 2 decisions (1 Insurer proved mailing, 1 Insurer failed to prove)2015, Appellate Division: 5 decisions (5 Insurer proved mailing)2014, Appellate Division: 1 decision (1 Insurer proved mailing)2013, Appellate Division: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2024, Appellate Division: 2 decisions (2 Insurer proved mailing)2018, Appellate Division: 1 decision (1 Insurer proved mailing)2017, Appellate Term: 3 decisions (2 Insurer failed to prove, 1 Provider proved mailing)2016, Appellate Term: 9 decisions (9 Insurer proved mailing)2015, Appellate Term: 18 decisions (14 Insurer proved mailing, 2 Insurer failed to prove, 1 Provider proved mailing, 1 Provider failed to prove)2014, Appellate Term: 13 decisions (10 Insurer proved mailing, 2 Insurer failed to prove, 1 Triable issue on mailing)2013, Appellate Term: 6 decisions (4 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2012, Appellate Term: 10 decisions (6 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider failed to prove)2011, Appellate Term: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2010, Appellate Term: 3 decisions (2 Insurer proved mailing, 1 Provider proved mailing)2008, Appellate Term: 3 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider proved mailing)2007, Appellate Term: 1 decision (1 Provider failed to prove)2006, Appellate Term: 4 decisions (1 Insurer failed to prove, 1 Provider proved mailing, 2 Provider failed to prove)2004, Appellate Term: 1 decision (1 Provider proved mailing)2025, Appellate Term: 2 decisions (2 Insurer proved mailing)2026, Appellate Term: 1 decision (1 Insurer proved mailing)2005, Appellate Term: 1 decision (1 Insurer proved mailing)2020, Appellate Term: 1 decision (1 Insurer failed to prove)2022, Trial courts: 2 decisions (1 Insurer proved mailing, 1 Insurer failed to prove)2021, Trial courts: 6 decisions (5 Insurer proved mailing, 1 Provider proved mailing)2020, Trial courts: 2 decisions (2 Provider failed to prove)2019, Trial courts: 2 decisions (2 Insurer proved mailing)2018, Trial courts: 2 decisions (1 Insurer proved mailing, 1 Triable issue on mailing)2013, Trial courts: 2 decisions (2 Insurer proved mailing)2009, Trial courts: 2 decisions (1 Insurer proved mailing, 1 Provider proved mailing)2008, Trial courts: 2 decisions (2 Insurer proved mailing)2007, Trial courts: 2 decisions (1 Insurer proved mailing, 1 Provider proved mailing)2024, Trial courts: 2 decisions (2 Insurer proved mailing)2025, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider proved mailing)2026, Trial courts: 2 decisions (2 Insurer failed to prove)2005, Trial courts: 1 decision (1 Mixed rulings)2006, Trial courts: 2 decisions (1 Provider proved mailing, 1 Triable issue on mailing)2023, Trial courts: 1 decision (1 Insurer proved mailing)This decision
20052010201520202025
Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 133 decisions on this question in the First Department courts and the Court of Appeals, 88 (this one included) are in the same category.

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 proper mailing of IME and EUO notices and, through examining physicians' personal-knowledge affidavits, repeated nonappearance; the provider raised no triable issue.

  • Appellate DivisionApp Div 48
  • Appellate TermApp Term 69
  • Trial courtsTrial 40
2023, Appellate Division: 4 decisions (3 Defense proved, 1 Requests not compliant)2022, Appellate Division: 7 decisions (3 Defense proved, 4 Requests not compliant)2021, Appellate Division: 2 decisions (2 Defense proved)2020, Appellate Division: 4 decisions (3 Defense proved, 1 Requests not compliant)2019, Appellate Division: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2018, Appellate Division: 5 decisions (2 Defense proved, 1 Mailing not proved, 2 Requests not compliant)2017, Appellate Division: 2 decisions (1 Defense proved, 1 Requests not compliant)2016, Appellate Division: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2015, Appellate Division: 6 decisions (1 Defense proved, 5 Requests not compliant)2014, Appellate Division: 2 decisions (2 Defense proved)2013, Appellate Division: 4 decisions (3 Defense proved, 1 Mailing not proved)2011, Appellate Division: 1 decision (1 Defense proved)2024, Appellate Division: 2 decisions (2 Defense proved)2025, Appellate Division: 3 decisions (2 Defense proved, 1 Requests not compliant)2019, Appellate Term: 3 decisions (1 Mailing not proved, 1 Nonappearance not proved, 1 Triable issue)2018, Appellate Term: 1 decision (1 Defense proved)2017, Appellate Term: 1 decision (1 Nonappearance not proved)2016, Appellate Term: 14 decisions (5 Defense proved, 6 Nonappearance not proved, 1 Requests not compliant, 2 Triable issue)2015, Appellate Term: 12 decisions (11 Defense proved, 1 Requests not compliant)2014, Appellate Term: 6 decisions (6 Defense proved)2013, Appellate Term: 5 decisions (4 Defense proved, 1 Mailing not proved)2012, Appellate Term: 8 decisions (6 Defense proved, 2 Mailing not proved)2011, Appellate Term: 7 decisions (6 Defense proved, 1 Mailing not proved)2010, Appellate Term: 2 decisions (2 Defense proved)2007, Appellate Term: 1 decision (1 Requests not compliant)2005, Appellate Term: 3 decisions (1 Defense proved, 2 Requests not compliant)2025, Appellate Term: 3 decisions (3 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2020, Appellate Term: 1 decision (1 Mailing not proved)2022, Trial courts: 8 decisions (2 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 4 Requests not compliant)2021, Trial courts: 6 decisions (3 Defense proved, 2 Requests not compliant, 1 No-show excused)2020, Trial courts: 7 decisions (1 Mailing not proved, 6 Requests not compliant)2019, Trial courts: 1 decision (1 Defense proved)2018, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 3 decisions (2 Defense proved, 1 Nonappearance not proved)2013, Trial courts: 4 decisions (2 Defense proved, 2 Nonappearance not proved)2009, Trial courts: 1 decision (1 Defense proved)2007, Trial courts: 1 decision (1 Requests not compliant)2024, Trial courts: 1 decision (1 Requests not compliant)2025, Trial courts: 2 decisions (1 Mailing not proved, 1 Nonappearance not proved)2026, Trial courts: 1 decision (1 Mailing not proved)2005, Trial courts: 1 decision (1 Defense proved)2023, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 157 decisions on this question in the First Department courts and the Court of Appeals, 89 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273) FollowedFailure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness.
  • Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.

Similar decisions

  • 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.
  • 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.
  • MDJ Med. PC v Delos Ins. Co. (2016 NY Slip Op 50604(U))The insurer established timely EUO requests, proper mailing and the assignor's nonappearance at two scheduled EUOs. Its EUO letters demonstrated compliance with the request periods in 11 NYCRR 65-3.5 (b) and 65-3.6 (b).
  • 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.
  • MRJA Radiology, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51381(U))The insurer established the assignor's IME nonappearance through the scheduled physician's affirmation and the scheduler employee's affidavit.
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