September 29, 2008

Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51954(U))

https://www.beynensonlaw.com/case-law/post-traumatic-med-care-p-c-v-progressive-cas-ins-co-2008-ny-slip-op51954u/

Court: Appellate Term, Second Department
Decided: September 29, 2008
Citation: 2008 NY Slip Op 51954(U) · 21 Misc 3d 128(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: IME no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 128(A), 2008 NY Slip Op 51954(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 insurer failed to raise a triable issue on its IME nonappearance defense because it lacked admissible proof from a person with knowledge. The Appellate Term, Second Department, reversed the order denying the provider's summary judgment motion, granted the motion and remanded for calculation of statutory interest and attorney fees under Insurance Law § 5106 (a) and its implementing regulations. Although the insurer denied the claims for the assignors' failures to attend scheduled IMEs, it supplied no admissible evidence from anyone with personal knowledge of those nonappearances. The court did not review the provider's prima facie showing because the insurer challenged it neither below nor on appeal.

Reported in New York Official Reports at Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51954(U))

[*1]

Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co.

2008 NY Slip Op 51954(U) [21 Misc 3d 128(A)]

Decided on September 29, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-1226 K C.

Post Traumatic Medical Care, P.C. a/a/o Ahissa Smith and Tameeka Nunn, Appellant,
against
Progressive Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered April 25, 2006. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for the calculation of statutory interest and attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that plaintiffs’ assignors breached the cooperation clause of the insurance policy by failing to attend duly scheduled independent medical examinations (IMEs). The court below denied the motion, holding that an issue of fact remained as to the mailing and receipt of the examination notices. This appeal by plaintiff ensued.

Since defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

On appeal, plaintiff contends, inter alia, that defendant failed to create a triable issue of fact by competent proof that the assignors failed to attend the IMEs, and we agree. While defendant denied the claims based upon the assignors’ failures to appear for scheduled IMEs, defendant did not submit evidence in admissible form from anyone with personal knowledge of the assignors’ nonappearances (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is reversed, plaintiff’s motion for summary [*2]judgment is granted and the matter remanded to the court below for the calculation of
statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: September 29, 2008

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 failed to prove the nonappearance by someone with personal knowledge

Held the insurer raised no triable issue on its IME no-show defense because it submitted no admissible evidence from anyone with personal knowledge of the assignors' nonappearances.

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, 79 (this one included) are in the same category.

Cited in this decision

Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Vista Surgical Supplies, Inc. v Autoone Ins. Co. (2008 NY Slip Op 51460(U))The insurer obtained dismissal of an unverified claim as premature but failed to prove IME nonappearance on a separate claim.
Vista Surgical Supplies, Inc. v New York Cent. Ins. Co. (2007 NY Slip Op 50165(U))The insurer's examiner affidavit failed to establish mailing of pre-claim IME notices or the assignor's alleged nonappearances.

Cited by

A label shows how the later decision treated this one.

Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 28494) FollowedAn IME by a licensed psychologist can satisfy the mandatory no-fault endorsement's requirement of examination by a physician.

Similar decisions

All Mental Care Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52588(U))The insurer failed to prove timely mailing of the IME requests or the assignor's nonappearance through admissible evidence.
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.
Post Traumatic Med. Care, P.C. v Travelers Home & Mar. Ins. Co. (2009 NY Slip Op 51149(U))The provider's billing manager failed to lay a business-record foundation, defeating the provider's motion for summary judgment.
Inwood Hill Med., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51397(U))The insurer failed to prove the assignor's EUO and IME nonappearances, while the providers failed to authenticate their billing records.
J.C. Healing Touch Rehab, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50635(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.