August 28, 2020
Quest Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2020 NY Slip Op 51003(U))
https://www.beynensonlaw.com/case-law/quest-supply-inc-v-ny-cent-mut-fire-ins-co-2020-ny-slip-op51003u/
- Decided
- August 28, 2020
- Citation
- 2020 NY Slip Op 51003(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
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 Quest Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2020 NY Slip Op 51003(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
NY Central Mutual Fire Ins. Co., Appellant.
Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant. Gary Tsirelman, P.C. (Devon Riley Christian of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered October 26, 2018. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150 is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, for summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). In support of the motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule the pre-claim IMEs, which affidavit sufficiently demonstrated that the scheduling letters had been properly mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant proffered affidavits from the chiropractors who were to perform chiropractic and acupuncture IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claim representative demonstrated that the denial of claim form, which denied the claim seeking to recover the sum of $1,150 based on the assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).
In opposition, the affirmation of plaintiff’s counsel failed to demonstrate the existence of a triable issue of fact, since no issue was raised with respect to the scheduling letters mailed directly to plaintiff’s assignor (see generally MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2014]). Plaintiff’s remaining contention regarding defendant’s proof that the assignor had failed to appear for the IMEs lacks merit.
Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150 is granted.
ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
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.
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 proved proper mailing of the pre-claim IME letters and, through the examining chiropractors' affidavits, the assignor's nonappearance; the provider's challenge to the nonappearance proof lacked merit.
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.
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 (rules on the question, but another ground decided the case)
Required proof that the denial based on the IME nonappearance was timely mailed and found the claim representative's affidavit established it.
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 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 IME vendor employee's affidavit showed the scheduling letters were properly mailed to the assignor and the claim representative's affidavit showed the denial was timely mailed; counsel's affirmation raised no issue.
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.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- 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.
- MML Med. Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51792(U))The assignor's EUO nonappearance was not excused by apparent nondelivery of certified notices where first-class mailing was unrebutted.
Similar decisions
- Quest Supply, Inc. v Praetorian Ins. Co. (2021 NY Slip Op 50437(U))The insurer's cross motion for summary judgment dismissing the complaint was granted based on the assignor's failure to attend scheduled IMEs. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
- Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U))An insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue.
- Valdan Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 50739(U))The insurer preserved its IME nonappearance defense for one claim but omitted that ground from the denials of three others.
- Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51006(U))The insurer established timely mailing of IME notices and the assignor's nonappearance, warranting dismissal of the claim at issue.
- NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.