February 22, 2019

Preferred Ortho Prods., Inc. v 21st Century Ins. Co. (2019 NY Slip Op 50224(U))

https://www.beynensonlaw.com/case-law/preferred-ortho-prods-inc-v-21st-century-ins-co-2019-ny-slip-op50224u/

Court: Appellate Term, Second Department
Decided: February 22, 2019
Citation: 2019 NY Slip Op 50224(U) · 62 Misc 3d 148(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show

Cite as

Preferred Ortho Prods., Inc. v 21st Century Ins. Co., 62 Misc 3d 148(A), 2019 NY Slip Op 50224(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 provider's challenge to the address on the IME scheduling letters was unpreserved because it was first raised on appeal. The Civil Court granted the insurer summary judgment dismissing the assigned no-fault claims for the assignor's failure to appear for duly scheduled IMEs and denied the provider's cross motion. The provider's sole appellate contention concerning the insurer's motion was that the scheduling letters included an apartment number absent from its claim forms. Following Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, declined to consider that contention and affirmed the order.

Reported in New York Official Reports at Preferred Ortho Prods., Inc. v 21st Century Ins. Co. (2019 NY Slip Op 50224(U))

[*1]

Preferred Ortho Prods., Inc. v 21st Century Ins. Co.

2019 NY Slip Op 50224(U) [62 Misc 3d 148(A)]

Decided on February 22, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2318 Q C

Preferred Ortho Products, Inc., as Assignee of Reid, Ramone, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Maryana Feigen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered August 11, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied plaintiff’s cross motion for summary judgment.

Plaintiff’s sole appellate contention with respect to defendant’s motion, “that the address used on the IME scheduling letters improperly included an apartment number that does not appear on plaintiff’s claim forms, will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015])” (Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51523[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 22, 2019

Cited in this decision

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

Mind & Body Acupuncture, P.C. v Elrac, Inc. (2015 NY Slip Op 51219(U))The insurer established full fee-schedule payment, and the provider's challenge to the IME letters' address was unpreserved.
Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51523(U)) FollowedThe insurer established proper mailing of IME notices and the denial form, as well as the assignor's failure to attend the IMEs. The provider appealed summary judgment dismissing its assigned no-fault claim.

Similar decisions

Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U))The insurer's summary judgment cross motion dismissing the complaint for the assignor's IME nonappearance was granted and affirmed.
Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))The provider's challenge to proof of denial mailing failed, and its remaining argument was raised for the first time on appeal.
Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51320(U))The provider's objection that the IME notices improperly included an apartment number was unpreserved.
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.
Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance.