February 24, 2015
Power Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50218(U))
https://www.beynensonlaw.com/case-law/power-supply-inc-v-praetorian-ins-co-2015-ny-slip-op50218u/
- Decided
- February 24, 2015
- Citation
- 2015 NY Slip Op 50218(U) · 46 Misc 3d 146(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 Power Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50218(U))
| Power Supply, Inc. v Praetorian Ins. Co. |
| 2015 NY Slip Op 50218(U) [46 Misc 3d 146(A)] |
| Decided on February 24, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., MARANO and GARGUILO, JJ.
2013-1384 S C
against
Praetorian Insurance Company, Appellant.
Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 29, 2013. 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). Plaintiff opposed the motion. By order dated April 29, 2013, the District Court denied the motion.
Defendant demonstrated that it had timely mailed initial EUO and IME requests within 15 business days of receipt of the claim forms at issue (see 11 NYCRR 65-3.5 [b]), and subsequently mailed timely follow-up requests (see 11 NYCRR 65-3.6 [b]), thereby tolling its time to pay or deny the claims. While plaintiff’s assignor failed to appear for chiropractic/acupuncture IMEs on October 5 and October 26, 2010 and orthopedic IMEs on October 7 and November 3, 2010, he also failed to attend EUOs on October 27 and November 22, 2010. As defendant denied the claims within 30 days after the assignor had failed to appear at the November 22, 2010 EUO (see 11 NYCRR 65-3.8 [a]), the claims at issue were timely denied on the ground that plaintiff’s assignor had failed to appear for properly scheduled IMEs and EUOs, regardless of the fact that the IME nonappearances had occurred more than 30 days prior to the issuance of the denial (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50158[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Since an assignor’s appearance for any duly scheduled IME or EUO is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant was not precluded from raising its defenses. Consequently, defendant established its prima facie entitlement to summary judgment dismissing the complaint. In opposition, plaintiff submitted only an affirmation of counsel, which affirmation failed to raise a triable issue of fact.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Tolbert, J.P., Marano and Garguilo, JJ., concur.
Decision Date: February 24, 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.
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
Held the denials timely because issued within 30 days after the assignor's last EUO nonappearance, even though the IME nonappearances occurred over 30 days earlier, so the insurer was not precluded.
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 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 showed timely initial EUO and IME requests within 15 business days, timely follow-ups, and the assignor's nonappearances, and counsel's affirmation raised no triable issue.
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.
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 insurer demonstrated that it timely mailed the initial and follow-up EUO and IME requests.
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.
- 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.
- Stracar Med. Servs., P.C. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51431(U)) FollowedThe assignor's attendance at other IMEs raised no factual issue concerning the reasonableness of the orthopedic IME requests at issue.
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.
- I.V. Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50380(U))The insurer's affidavits established timely mailing of IME notices and the assignor's failure to appear for the scheduled IMEs. The insurer sought summary judgment dismissing the provider's assigned no-fault claims.
- Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51862(U))The insurer's proof established timely IME notices and denials and the assignor's nonappearances, warranting summary judgment.
- Pro Health Acupuncture, P.C. v Praetorian Ins. (2016 NY Slip Op 50380(U))The insurer's affidavits established timely mailing of the IME requests and denials and the assignor's failure to attend duly scheduled IMEs. The provider sought assigned first-party no-fault benefits.
- 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.