May 15, 2012
Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U))
https://www.beynensonlaw.com/case-law/midwood-total-rehabilitation-med-p-c-v-state-farm-mut-auto-ins-co-2012-nyslip-op-50931u/
- Decided
- May 15, 2012
- Citation
- 2012 NY Slip Op 50931(U) · 35 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
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 Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U))
| Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. |
| 2012 NY Slip Op 50931(U) [35 Misc 3d 142(A)] |
| Decided on May 15, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : WESTON, J.P., PESCE and RIOS, JJ
2010-1246 K C.
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered January 14, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.The affidavit by an employee of Independent Physical Exam Referrals, the entity which had scheduled the independent medical examinations (IMEs) involved herein on behalf of defendant, established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In addition, the affidavits executed by defendant’s claims examiner and claims support services supervisor demonstrated that the denial of claim forms, which denied the claims based upon the [*2]failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affirmations from its examining physician, chiropractor and acupuncturist, all of whom stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as plaintiff submitted only an affirmation in opposition from its counsel, which failed to raise a triable issue of fact, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 15, 2012
Legal questions (3)
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 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 established mailing of the IME scheduling letters and, through the examiners' affirmations, the assignor's nonappearance; counsel's affirmation raised no triable issue.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the insurer showed its denial forms, based on the IME nonappearance, had been timely mailed, as part of its prima facie no-show defense.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the scheduling vendor's affidavit established timely mailing of the IME letters and the claims examiner's and supervisor's affidavits established timely mailing of the denials.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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
- 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.
- Jamhil Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51644(U))The insurer established timely mailing of IME notices and a denial based on the assignor's failure to appear for the scheduled IMEs. The president of the independent medical review service retained to schedule the examinations established timely mailing of the scheduling letters.
- Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51758(U))The insurer established timely IME requests and denials and the assignor's failure to attend the scheduled examinations.
- 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.