May 6, 2013
Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co. (2013 NY Slip Op 50750(U))
https://www.beynensonlaw.com/case-law/quality-psychological-servs-p-c-v-travelers-home-mar-ins-co-2013ny-slip-op-50750u/
- Decided
- May 6, 2013
- Citation
- 2013 NY Slip Op 50750(U) · 39 Misc 3d 140(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)
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 Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co. (2013 NY Slip Op 50750(U))
| Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co. |
| 2013 NY Slip Op 50750(U) [39 Misc 3d 140(A)] |
| Decided on May 6, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-435 K C.
against
Travelers Home & Marine Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 28, 2010. The order granted plaintiff’s 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, defendant appeals from an order which granted plaintiff’s motion for summary judgment, finding that defendant had failed to prove that plaintiff’s assignor had not appeared for independent medical examinations (IMEs).
On appeal, defendant argues that an affidavit executed by the operations manager of SIGNET Medical Services, P.C. (SIGNET), a company retained by defendant to manage the scheduling of IMEs, was sufficient to raise a triable issue of fact as to whether plaintiff’s assignor had appeared for the scheduled IMEs. According to the affidavit, it is the “contractual responsibility” of the healthcare professional assigned to conduct a scheduled IME to “inform” [*2]SIGNET that a claimant did not appear for a scheduled appointment. The affidavit further states that, in this case, after each of the dates on which an IME was scheduled, the assigned healthcare professional “informed” SIGNET that plaintiff’s assignor had not appeared. Defendant also attached letters from SIGNET to defendant stating that plaintiff’s assignor had failed to appear for scheduled IMEs.
In its brief, defendant argues, in effect, that it had been “notified” that plaintiff’s assignor had failed to appear for IMEs and that the letters from SIGNET are not hearsay because the “statement” of the healthcare professional was being proffered in this case only to prove that the statement was made, not for its truth. However, in order to raise a triable issue of fact, defendant must demonstrate that plaintiff’s assignor actually failed to comply with a condition precedent to coverage by failing to appear for duly scheduled IMEs, and defendant failed to do so (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013
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.
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 a scheduling company's affidavit and letters relaying that the examining professional reported the assignor's nonappearance insufficient to show the assignor actually failed to appear for the IMEs, so no triable issue was raised.
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
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.
- Longevity Med. Supply, Inc. v Progressive Ins. Co. (2020 NY Slip Op 20137) FollowedTimely IME no-show denials defeated the provider's motion where it did not show that the denials were legally insufficient.
Similar decisions
- Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51256(U))The insurer proved timely mailing of the IME notices and denial and the assignor's nonappearance, warranting dismissal of the provider's claim.
- 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.
- Quality Psychological Servs., P.C. v Auto One Ins. Co. (2011 NY Slip Op 52281(U))The insurer's IME nonappearance defense was precluded because its affidavit failed to establish timely mailing of the denial.
- Great Health Care Chiropractic, P.C. v Tri State Consumers Ins. Co. (2016 NY Slip Op 50864(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy.
- 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.