March 16, 2015
Performance Plus Med., P.C. v Utica Mut. Ins. Co. (2015 NY Slip Op 50399(U))
https://www.beynensonlaw.com/case-law/performance-plus-med-p-c-v-utica-mut-ins-co-2015-ny-slip-op50399u/
- Decided
- March 16, 2015
- Citation
- 2015 NY Slip Op 50399(U) · 47 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 Performance Plus Med., P.C. v Utica Mut. Ins. Co. (2015 NY Slip Op 50399(U))
| Performance Plus Med., P.C. v Utica Mut. Ins. Co. |
| 2015 NY Slip Op 50399(U) [47 Misc 3d 129(A)] |
| Decided on March 16, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2520 K C
against
Utica Mutual Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 10, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 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 on the ground that it had timely and properly denied the claims at issue based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The Civil Court denied defendant’s motion.
Defendant submitted sufficient proof to show that the EUO and 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]); that, where necessary, the time to pay or deny plaintiff’s claim had been tolled by issuance of those letters; that plaintiff’s assignor had failed to appear for any of the properly scheduled EUOs and IMEs; and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). We note that, contrary to plaintiff’s argument on appeal, the mailing affidavit submitted by defendant alleged that two copies of each denial of claim form were mailed to plaintiff. In any event, the failure to send a denial in duplicate is not, on its own, a fatal error (Mollo Chiropractic, PLLC v American Commerce Ins. Co., 42 Misc 3d 66, 69 [App Term, 2d, 11th & 13th Jud Dists 2013]).
Since an assignor’s appearance at any properly scheduled EUO or IME is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015
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 proved timely mailing of the EUO and IME scheduling letters and the assignor's failure to appear for any of the properly scheduled exams, so dismissal should have been granted.
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 scheduling letters tolled the time to pay or deny where necessary and the claims were timely denied on the EUO/IME no-show ground; failure to send the denial in duplicate is not fatal.
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 letters and denials proved timely mailed, noting the mailing affidavit did allege that two copies of each denial were mailed to the provider.
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.
- Mollo Chiropractic, PLLC v American Commerce Ins. Co. (2013 NY Slip Op 23419) FollowedAn insurer's failure to send an NF-10 denial in duplicate does not, by itself, preclude an otherwise meritorious defense.
- 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.
Cited by
A label shows how the later decision treated this one.
- Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U)) FollowedThe provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances.
Similar decisions
- Ortho Passive Motion, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51364(U))The insurer established timely IME notices, the assignor's nonappearance, and timely denials after receipt of requested verification.
- 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.
- Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))The insurer established timely mailing of IME notices and the assignor's repeated nonappearance through affidavits based on personal knowledge.
- Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))The insurer established timely IME notices and the assignor's nonappearance, defeating the provider's claims.
- Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. (2014 NY Slip Op 50421(U))An assignor's appearance at an EUO is a condition precedent to the insurer's liability under the policy.