December 17, 2014
Parkview Med. & Surgical, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51822(U))
https://www.beynensonlaw.com/case-law/parkview-med-surgical-p-c-v-geico-gen-ins-co-2014-ny-slip-op51822u/
- Decided
- December 17, 2014
- Citation
- 2014 NY Slip Op 51822(U)
- Posture
- Summary judgment
- Outcome
- Split result
- Legal questions
- No-show defense: insurer's proof · Proving a fee schedule defense · Proof of mailing (see the maps)
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 Parkview Med. & Surgical, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51822(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Geico General Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered June 19, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action and so much of the first and second causes of action as sought to recover on claims that had been denied on the ground that plaintiff’s assignor had failed to appear for independent medical examinations is granted; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court, upon denying the motion and cross motion, made, in effect, CPLR 3212 (g) findings in both parties’ favor and held that the only issues remaining for trial were defendant’s defenses that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs) and that defendant had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule.
On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).
In support of the branch of its cross motion seeking summary judgment dismissing the third cause of action and part of the first and second causes of action due to the assignor’s failure to appear for IMEs, defendant submitted an affidavit by a manager employed by Support Claims Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME requests 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]). Defendant also submitted, among other things, an affirmation from a doctor as well as affidavits from a chiropractor and acupuncturist, all of whom were to perform the IMEs, which affidavits were [*2]sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action and so much of the first and second causes of action as sought to recover on claims that had been denied due to the assignor’s failure to appear for IMEs should have been granted (see id.).
However, the affidavit of defendant’s claims examiner, which was submitted In support of the branch of its cross motion seeking summary judgment dismissing so much of the first and second causes of action as sought to recover upon claims that had been denied based upon the workers’ compensation fee schedule, was insufficient (see Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action and so much of the first and second causes of action as sought to recover on claims that had been denied on the ground that plaintiff’s assignor had failed to appear for IMEs is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
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 scheduler's affidavit proved timely mailing of the IME requests and the scheduled examiners' affidavits proved the assignor's nonappearance, entitling the insurer to dismissal of the no-show claims.
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.
Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?
This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial
Held the claims examiner's affidavit insufficient to establish that the fee-schedule-denied charges exceeded the workers' compensation fee schedule, so summary judgment on those claims was denied.
Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 85 (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 affidavit of a manager of the insurer's IME scheduling vendor sufficiently established timely mailing of the IME requests.
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.
- EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U)) FollowedThe insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The 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)An 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.
- Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
Similar decisions
- Compas Med., P.C. v Geico Ins. Co. (2015 NY Slip Op 51590(U))The insurer's conclusory IME nonappearance proof and the provider's deficient prima facie showing defeated both motions on the third cause of action.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations.
- Arco Med. NY, P.C. v AIG Indem. Ins. Co. (2014 NY Slip Op 51257(U))The insurer established timely mailing of the IME notices and denials and the assignor's failure to appear for the scheduled IMEs. The providers sought assigned no-fault benefits, and the insurer moved for summary judgment on the claims denied for IME nonappearance.
- EA Chiropractic Diagnostics, P.C. v GEICO Ins. (2020 NY Slip Op 51331(U))The insurer proved its IME nonappearance defense to one claim but failed to establish timely EUO denials for the remaining claims.
- Eastern Star Acupuncture, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52205(U))The insurer's IME nonappearance defense was precluded for the claim its denial form instead denied based on an IME report.