April 16, 2015

Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))

https://www.beynensonlaw.com/case-law/priority-med-diagnostics-p-c-v-new-york-cent-mut-fire-ins-co-2015ny-slip-op-50538u/

Court: Appellate Term, First Department
Decided: April 16, 2015
Citation: 2015 NY Slip Op 50538(U) · 47 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co., 47 Misc 3d 137(A), 2015 NY Slip Op 50538(U) (App Term, 1st Dept 2015)

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 established timely mailing of IME notices and the assignor's repeated nonappearance through affidavits based on personal knowledge. The third-party IME scheduler described standard office mailing practices and procedures. The scheduled chiropractor, acupuncturist and scheduler supplied sworn affidavits detailing their personal knowledge of the missed examinations and office practices when an assignor failed to appear. The provider did not specifically deny nonappearance or raise a triable issue concerning that failure, the mailing of the notices or their reasonableness. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted dismissal of the provider's no-fault claim and directed entry of judgment.

Reported in New York Official Reports at Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))

[*1]

Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co.

2015 NY Slip Op 50538(U) [47 Misc 3d 137(A)]

Decided on April 16, 2015

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570005/14

Priority Medical Diagnostics, P.C., a/a/o Julio Espinal, Plaintiff-Respondent,
against
New York Central Mutual Fire, Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered February 9, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.) entered February 9, 2012, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). The affidavit of defendant’s third-party IME scheduler, who had personal knowledge of his office’s standard mailing practices and procedures, sufficiently established the mailing of the IME notices (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]). Defendant also submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor and acupuncturist, as well as the IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: April 16, 2015

Legal questions (2)

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.

Proof of mailing

Open the full map

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

Held the third-party IME scheduler's affidavit, based on personal knowledge of the office's standard mailing practices, sufficiently established mailing of the IME notices.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 161 decisions on this question in the First Department courts and the Court of Appeals, 110 (this one included) are in the same category.

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 IME scheduler's affidavit proved mailing of the notices and the examining chiropractor's, acupuncturist's and scheduler's affidavits proved repeated nonappearances; the provider raised no triable issue.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 165 decisions on this question in the First Department courts and the Court of Appeals, 94 (this one included) are in the same category.

Cited in this decision

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

American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273) FollowedFailure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness.
Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.

Similar decisions

S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))The insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices.
SMB Med., P.C. v State Farm Mut. Ins. Co. (2014 NY Slip Op 51853(U))The insurer proved the assignor's IME nonappearance through evidence of office practices and timely mailing of the notices.
Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))The insurer established timely and proper mailing of IME notices and the assignor's nonappearance, without a triable rebuttal.
Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51677(U))The insurer established proper mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue.
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.