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April 1, 2025

Nationwide Gen. Ins. Co. v Gaines (2025 NY Slip Op 01896)

https://www.beynensonlaw.com/case-law/nationwide-gen-ins-co-v-gaines-2025-ny-slip-op-01896/

Court
Appellate Division, First Department
Decided
April 1, 2025
Citation
2025 NY Slip Op 01896
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
IME no-show Timeliness and preclusion
Legal questions
No-show defense: insurer's proof · No-show: coverage defense or precludable? · Proof of mailing (see the maps)
Cite as
Nationwide Gen. Ins. Co. v Gaines, 2025 NY Slip Op 01896 (1st Dept 2025)

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.

IME notices sent before receipt of claims are not subject to the verification notification requirements of 11 NYCRR 65-3.5 and 65-3.6. The insurers established that the injured claimant failed to attend two properly noticed IMEs through a scheduling employee's affidavit and consistent affirmations from the IME physician. The providers' objection that the IMEs were untimely failed because the notices preceded receipt of claims. Nonappearance was a coverage defense applying to all claims rather than bill by bill, and the insurers were not required to establish timely disclaimer. The Appellate Division, First Department, reversed the denial of summary judgment, granted the insurers' motion, and declared no obligation to pay the two respondent providers' no-fault claims.

Reported in New York Official Reports at Nationwide Gen. Ins. Co. v Gaines (2025 NY Slip Op 01896)

Nationwide Gen. Ins. Co. v Gaines
2025 NY Slip Op 01896
Decided on April 01, 2025
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: April 01, 2025
Before: Manzanet-Daniels, J.P., González, Shulman, Rodriguez, Pitt-Burke, JJ.

Index No. 151738/22|Appeal No. 4009|Case No. 2024-03961|

[*1]Nationwide General Insurance Company et al., Plaintiffs-Appellants,

v

Raheem Gaines et al., Defendants, Emote Medical Services P.C. et al., Defendants-Respondents.




Hollander Legal Group, PC, Melville (Brian Kaufman of counsel), for appellants.

The Rybak Firm, P.L.L.C., Brooklyn (Maksim Leyvi of counsel), for respondents.



Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered April 15, 2024, which denied plaintiffs’ motion for summary judgment declaring that they have no obligation to pay no-fault benefits to defendants Emote Medical Services P.C. and Nourseen PT P.C. (together, the Providers) in connection with the underlying June 2, 2021 motor vehicle collision, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

Plaintiffs are entitled to summary judgment because they established that the injured claimant failed to attend properly noticed independent medical examinations (IMEs), thus foreclosing coverage (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Plaintiffs submitted the affidavit of an employee from the company that schedules the IMEs, who averred that he sent two IME notices to the claimant and that the claimant failed to appear on either date. Plaintiffs also submitted the affirmations of the IME doctor, which were consistent with the scheduling employee’s affidavit in that claimant failed to appear for the examinations.

The Providers’ argument that the IMEs were untimely is unpersuasive. Where, as here, an insurer sends “notices scheduling . . . IMEs prior to the receipt of . . . claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply” (Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]). Moreover, the failure to attend a properly noticed examination is a “coverage defense [that] appl[ies] to any claims, and is not determined on a bill by bill basis” (PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020] [internal quotation marks omitted]).

Nor were plaintiffs required to establish timely disclaimer of coverage in light of claimant’s failure to attend the medical examinations (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424-425; see also Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 1, 2025

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.

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 insurers proved the IME no-show through the scheduler's affidavit of two mailed notices and the IME doctor's consistent affirmations, and rejected the untimeliness objection because the notices preceded receipt of the claims.

  • Appellate DivisionApp Div 53
  • Appellate TermApp Term 71
  • Trial courtsTrial 40
2023, Appellate Division: 4 decisions (3 Defense proved, 1 Requests not compliant)2022, Appellate Division: 8 decisions (3 Defense proved, 5 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: 3 decisions (2 Defense proved, 1 Requests not compliant)2016, Appellate Division: 5 decisions (3 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2015, Appellate Division: 7 decisions (2 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)2006, Appellate Term: 2 decisions (1 Requests not compliant, 1 Triable issue)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 164 decisions on this question in the First Department courts and the Court of Appeals, 93 (this one included) are in the same category.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show voids coverage; insurer need not show a timely denial (rules on the question, but another ground decided the case)

Held the insurers were not required to establish a timely disclaimer because the claimant's failure to attend properly noticed IMEs forecloses coverage.

  • Appellate DivisionApp Div 12
  • Appellate TermApp Term 13
  • Trial courtsTrial 11
2021, Appellate Division: 1 decision (1 Coverage defense)2020, Appellate Division: 1 decision (1 Coverage defense)2018, Appellate Division: 2 decisions (1 Coverage defense, 1 Precludable: denial lacking)2016, Appellate Division: 2 decisions (2 Coverage defense)2014, Appellate Division: 1 decision (1 Coverage defense)2013, Appellate Division: 2 decisions (2 Coverage defense)2011, Appellate Division: 1 decision (1 Coverage defense)2024, Appellate Division: 1 decision (1 Coverage defense)2025, Appellate Division: 1 decision (1 Coverage defense)2016, Appellate Term: 2 decisions (2 Coverage defense)2015, Appellate Term: 6 decisions (6 Coverage defense)2014, Appellate Term: 3 decisions (3 Coverage defense)2013, Appellate Term: 1 decision (1 Coverage defense)2005, Appellate Term: 1 decision (1 Precludable: denial lacking)2021, Trial courts: 2 decisions (2 Coverage defense)2019, Trial courts: 1 decision (1 Coverage defense)2015, Trial courts: 1 decision (1 Precludable: denial lacking)2014, Trial courts: 3 decisions (1 Coverage defense, 2 Precludable: denial timely)2013, Trial courts: 1 decision (1 Coverage defense)2024, Trial courts: 1 decision (1 Precludable: denial timely)2005, Trial courts: 1 decision (1 Precludable: denial timely)2023, Trial courts: 1 decision (1 Coverage defense)This decision
20052010201520202025
Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 36 decisions on this question in the First Department courts and the Court of Appeals, 29 (this one included) are in the same category.

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 (rules on the question, but another ground decided the case)

Held the IME scheduling company employee's affidavit that he sent two IME notices established properly noticed IMEs, with the IME doctor's affirmations corroborating the claimant's nonappearance; the appeal turned mainly on IME timeliness and timely disclaimer.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 25
  • Appellate TermApp Term 98
  • Trial courtsTrial 36
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2023, Appellate Division: 1 decision (1 Insurer 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)2018, Appellate Division: 4 decisions (3 Insurer proved mailing, 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)2025, Appellate Division: 3 decisions (2 Insurer proved mailing, 1 Insurer failed to prove)2017, Appellate Term: 3 decisions (2 Insurer failed to prove, 1 Provider proved mailing)2016, Appellate Term: 12 decisions (12 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: 15 decisions (11 Insurer proved mailing, 2 Insurer failed to prove, 2 Triable issue on mailing)2013, Appellate Term: 7 decisions (5 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2012, Appellate Term: 16 decisions (11 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider failed to prove, 1 Triable issue on mailing)2011, Appellate Term: 8 decisions (7 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: 6 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing)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: 3 decisions (1 Insurer failed to prove, 2 Provider failed to prove)2019, Trial courts: 2 decisions (2 Insurer proved mailing)2018, Trial courts: 3 decisions (2 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 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (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.
  • Hereford Ins. Co. v Lida’s Med. Supply, Inc. (2018 NY Slip Op 03226) FollowedThe insurer's scheduling letters, service affidavits, and medical professionals' affidavits established the claimants' IME nonappearances.
  • Mapfre Ins. Co. of N.Y. v Manoo (2016 NY Slip Op 04446)EUO requests made before receipt of a claim form are not subject to the verification notice requirements of 11 NYCRR 65-3.5 and 65-3.6.

Similar decisions

  • Nationwide Gen. Ins. Co. v South (2024 NY Slip Op 00028)The insurers established a founded belief that the collision was not covered and, independently, the claimants' EUO nonappearance.
  • American Tr. Ins. Co. v Martinez (2022 NY Slip Op 00963)The insurer failed in both actions to establish timely IME requests and scheduling, defeating its nonappearance-based motions.
  • Unitrin Safeguard Ins. Co. v Manuel (2025 NY Slip Op 01727)The insurer established a founded belief that the claimants' injuries did not arise from the reported accident.
  • Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U))An insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue.
  • Columbus Imaging Ctr., LLC v Nationwide Ins. (2022 NY Slip Op 50620(U))The insurer's doctors failed to establish personal knowledge of the assignor's IME nonappearances, defeating summary judgment on that defense.
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