October 14, 2011
Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51862(U))
https://www.beynensonlaw.com/case-law/padova-physical-rehab-medicine-p-c-v-praetorian-ins-co-2011-ny-slip-op51862u/
- Decided
- October 14, 2011
- Citation
- 2011 NY Slip Op 51862(U) · 33 Misc 3d 130(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 Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51862(U))
| Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co. |
| 2011 NY Slip Op 51862(U) [33 Misc 3d 130(A)] |
| Decided on October 14, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-1037 Q C.
against
Praetorian Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 24, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). The Civil Court denied defendant’s motion on the ground that defendant had “failed to establish through its doctors’ affirmations that the patient failed to appear.”
In support of its motion, defendant submitted an affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which sufficiently established that the IME notices had been timely mailed in accordance with that service’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Inc. 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]). Defendant also submitted affirmations by the medical professionals who were retained to perform the IMEs, which affirmations were sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit by defendant’s examiner demonstrated the timely mailing of the claim denial forms, based on the assignor’s nonappearance at the IMEs, pursuant [*2]to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s claims based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 14, 2011
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, reversing a contrary finding, that the examining professionals' affirmations sufficiently established the assignor's nonappearance and that the IME notices had been timely mailed.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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.
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 not precluded from its IME no-show defense because it showed timely mailing of the denials based on the nonappearance, applying the preclusion rule.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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.
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 service manager's affidavit established timely mailing of the IME notices and the examiner's affidavit established timely mailing of the denials under standard practices.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Similar decisions
- Park Slope Med. v Praetorian Ins. Co. (2011 NY Slip Op 52062(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.
- Arcadia Imaging, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51208(U))The insurer's affidavits established timely mailing of IME notices and the denial, as well as the assignor's IME nonappearances.
- All About Rehabilitation & P.T., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51815(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy.
- Cortland Med. Supply, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50394(U))The insurer established the assignor's failure to attend duly scheduled IMEs and timely mailing of the requests and denials.
- Parkway Imaging & Diagnostic, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51853(U))The insurer's IME doctor's affirmation established the assignor's nonappearances, and the provider failed to raise a triable issue.