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December 15, 2017

Past v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51774(U))

https://www.beynensonlaw.com/case-law/past-v-ny-cent-mut-fire-ins-co-2017-ny-slip-op-51774u/

Court
Appellate Term, Second Department
Decided
December 15, 2017
Citation
2017 NY Slip Op 51774(U) · 58 Misc 3d 132(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
IME no-show
Legal questions
No-show defense: insurer's proof (see the maps)
Cite as
Past v NY Cent. Mut. Fire Ins. Co., 58 Misc 3d 132(A), 2017 NY Slip Op 51774(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 scheduled IME doctor's affirmation established the assignor's nonappearance, warranting dismissal of the provider's claims. The Civil Court had denied the insurer's summary judgment motion but found under CPLR 3212 (g) that the denial was timely and proper and that nonappearance was the sole issue for trial. The affirmation from the doctor who was to perform the IMEs sufficiently established that the assignor failed to appear. Because the provider did not challenge the finding that the insurer was otherwise entitled to judgment, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Past v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51774(U))

[*1]
Past v NY Cent. Mut. Fire Ins. Co.
2017 NY Slip Op 51774(U) [58 Misc 3d 132(A)]
Decided on December 15, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2749 Q C

Howard Past, D.C., as Assignee of Nimrod Morel, Respondent,

against

NY Central Mut. Fire Ins. Co., Appellant.

Gullo & Associates, LLP (Cristina Carollo, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 7, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant’s motion but made, in effect, CPLR 3212 (g) findings that defendant’s denial of claim form had been timely and proper and that the sole issue for trial was whether plaintiff’s assignor had failed to appear for the scheduled IMEs.

In support of its motion, defendant submitted an affirmation from the doctor who was to perform the IMEs, which affirmation was sufficient to establish that plaintiff’s assignor had failed to appear for the 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 order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the [*2]complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017

Legal questions

A question 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 affirmation of the doctor who was to perform the IMEs sufficient to establish the assignor's nonappearance, and, with the other elements unchallenged, granted the insurer summary judgment.

  • Appellate DivisionApp Div 9
  • Appellate TermApp Term 753
  • Trial courtsTrial 89
2023, Appellate Division: 1 decision (1 Defense proved)2020, Appellate Division: 1 decision (1 Defense proved)2016, Appellate Division: 2 decisions (2 Mailing not proved)2015, Appellate Division: 1 decision (1 Mailing not proved)2014, Appellate Division: 2 decisions (2 Defense proved)2006, Appellate Division: 1 decision (1 Mailing not proved)2004, Appellate Division: 1 decision (1 No-show excused)2023, Appellate Term: 5 decisions (5 Defense proved)2022, Appellate Term: 45 decisions (37 Defense proved, 3 Mailing not proved, 3 Nonappearance not proved, 2 Requests not compliant)2021, Appellate Term: 22 decisions (16 Defense proved, 3 Mailing not proved, 1 Requests not compliant, 2 Triable issue)2020, Appellate Term: 30 decisions (26 Defense proved, 2 Mailing not proved, 2 Requests not compliant)2019, Appellate Term: 68 decisions (52 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 13 Requests not compliant, 1 Triable issue)2018, Appellate Term: 52 decisions (43 Defense proved, 3 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant)2017, Appellate Term: 86 decisions (52 Defense proved, 14 Mailing not proved, 6 Nonappearance not proved, 11 Requests not compliant, 1 Triable issue, 2 No-show excused)2016, Appellate Term: 74 decisions (34 Defense proved, 14 Mailing not proved, 22 Nonappearance not proved, 3 Requests not compliant, 1 Triable issue)2015, Appellate Term: 77 decisions (48 Defense proved, 6 Mailing not proved, 14 Nonappearance not proved, 5 Requests not compliant, 4 Triable issue)2014, Appellate Term: 46 decisions (35 Defense proved, 5 Mailing not proved, 4 Nonappearance not proved, 2 Requests not compliant)2013, Appellate Term: 44 decisions (29 Defense proved, 6 Mailing not proved, 7 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Appellate Term: 51 decisions (37 Defense proved, 5 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant, 2 Triable issue, 1 No-show excused)2011, Appellate Term: 33 decisions (27 Defense proved, 3 Mailing not proved, 2 Nonappearance not proved, 1 Triable issue)2010, Appellate Term: 14 decisions (9 Defense proved, 1 Mailing not proved, 2 Nonappearance not proved, 2 Requests not compliant)2009, Appellate Term: 15 decisions (6 Defense proved, 6 Mailing not proved, 2 Nonappearance not proved, 1 Requests not compliant)2008, Appellate Term: 7 decisions (2 Defense proved, 1 Mailing not proved, 4 Nonappearance not proved)2007, Appellate Term: 15 decisions (1 Defense proved, 6 Mailing not proved, 5 Nonappearance not proved, 3 Triable issue)2006, Appellate Term: 19 decisions (1 Defense proved, 8 Mailing not proved, 6 Requests not compliant, 4 Triable issue)2005, Appellate Term: 19 decisions (3 Defense proved, 10 Mailing not proved, 5 Requests not compliant, 1 No-show excused)2004, Appellate Term: 15 decisions (3 Defense proved, 1 Mailing not proved, 10 Requests not compliant, 1 Triable issue)2024, Appellate Term: 6 decisions (6 Defense proved)2025, Appellate Term: 7 decisions (7 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2003, Appellate Term: 1 decision (1 Requests not compliant)2023, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 2 Triable issue)2022, Trial courts: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2021, Trial courts: 10 decisions (8 Defense proved, 2 Requests not compliant)2020, Trial courts: 3 decisions (2 Mailing not proved, 1 Requests not compliant)2019, Trial courts: 5 decisions (3 Mailing not proved, 2 Requests not compliant)2018, Trial courts: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2017, Trial courts: 6 decisions (2 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 Triable issue)2016, Trial courts: 4 decisions (3 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 1 Triable issue, 1 No-show excused)2013, Trial courts: 7 decisions (3 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 No-show excused)2012, Trial courts: 5 decisions (2 Defense proved, 3 Requests not compliant)2010, Trial courts: 3 decisions (2 Defense proved, 1 Requests not compliant)2009, Trial courts: 2 decisions (2 Defense proved)2008, Trial courts: 4 decisions (2 Defense proved, 2 Requests not compliant)2007, Trial courts: 1 decision (1 Mailing not proved)2006, Trial courts: 2 decisions (2 Mailing not proved)2005, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2004, Trial courts: 7 decisions (1 Defense proved, 2 Mailing not proved, 4 Requests not compliant)2024, Trial courts: 2 decisions (1 Mailing not proved, 1 Requests not compliant)2025, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2026, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2011, 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 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.

Cited in this decision

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

  • 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

  • Elmont Rehab P.T., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50961(U))The insurer established the assignor's failure to attend duly scheduled IMEs and timely denials based on those nonappearances.
  • By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices.
  • JCC Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51764(U))The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
  • MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50863(U))Conflicting affidavits about the examiners' locations prevented summary judgment on the assignors' alleged IME nonappearance.
  • East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))The insurer proved mailing of the IME notices, timely mailing of the denials, and the assignor's failure to attend the scheduled IMEs. An employee of the scheduling company established mailing through its standard office practices and procedures.
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