February 13, 2009
Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins.Co. (2009 NY Slip Op 50242(U))
https://www.beynensonlaw.com/case-law/richard-morgan-do-p-c-v-state-farm-mut-auto-ins-co-2009-ny-slip-op50242u/
- Decided
- February 13, 2009
- Citation
- 2009 NY Slip Op 50242(U) · 22 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 8 later decisions (see Cited by)
- Legal questions
- Proof of mailing · 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 Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins.Co. (2009 NY Slip Op 50242(U))
| Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2009 NY Slip Op 50242(U) [22 Misc 3d 134(A)] |
| Decided on February 13, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ
2008-373 N C.
against
State Farm Mutual Automobile Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Robert H. Spergel, J.), entered January 9, 2008. The order, insofar as appealed from, granted defendant’s cross motion for summary judgment dismissing the complaint.
Order, insofar as appealed from, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). In support of its cross motion, defendant submitted, inter alia, an affidavit of an employee of Independent Physical Exam Referrals, Inc. (IPER), the company which scheduled the IMEs. The District Court granted defendant’s cross motion for summary judgment dismissing the complaint. On appeal, plaintiff argues only that defendant’s cross motion for summary judgment should have been denied because the affidavit executed by IPER’s employee was insufficient to establish that defendant’s request and follow-up request for an IME were mailed to plaintiff’s assignor.
Contrary to plaintiff’s contentions, the affidavit submitted by defendant was sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed to plaintiff’s assignor (see Chi Acupuncture, P.C. v Kemper Auto & Home Insurance Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Accordingly, the order, insofar as appealed from, is affirmed.
Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
[*2]
Decision Date: February 13, 2009
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.
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 scheduling company employee's affidavit was sufficient to establish mailing of the initial and follow-up IME requests to the assignor.
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.
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 scheduling company employee's affidavit sufficiently established that the initial and follow-up IME requests were mailed to the assignor, sustaining the no-show defense.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co. (2007 NY Slip Op 50352(U)) FollowedThe insurer failed to support the alleged IME nonappearances with admissible evidence from anyone with personal knowledge.
Cited by (13)
A label shows how the later decision treated this one.
- Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50078(U)) FollowedThe insurer's chiropractor's affidavit and IME report established lack of medical necessity for the equipment, and the motion was unopposed.
- Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. (2013 NY Slip Op 52225(U)) FollowedThe insurer proved the provider's EUO nonappearances but failed to establish timely payment of a separate claim.
- Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U)) FollowedThe insurer failed to establish proper and timely mailing of the EUO notices and denial forms supporting its nonappearance defense.
- American Chiropractic Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50346(U)) FollowedThe provider's treating chiropractor's sworn letter raised a factual issue on medical necessity despite the insurer's peer review.
- Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co. (2015 NY Slip Op 50470(U)) FollowedNo provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO. The lower court denied summary judgment for lack of an objective justification despite finding timely notices, reasonable scheduling and the assignor's nonappearance.
- Bronx Mega Care Med, PLLC v Federal Ins. Co. (2015 NY Slip Op 51060(U)) FollowedThe provider's doctor's affirmation failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity.
- Huntington Regional Chiropractic, P.C. v Mercury Cas. Co. (2015 NY Slip Op 51900(U)) FollowedThe provider raised a medical-necessity issue but could not avoid a material and necessary deposition by serving written discovery responses.
- Hilltop Med. Diagnostic & Treatment Ctr. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52388(U)) FollowedThe insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable issue.
- Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U))The insurer established timely mailing of EUO notices and denials and the assignor's failure to appear at two scheduled EUOs. The provider obtained summary judgment after the District Court found insufficient objective justification for the EUO request.
- Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50685(U))An insurer need not set forth objective standards for requesting an EUO under No-Fault Regulation 68.
Similar decisions
- Richard Morgan D.O., P.C. v GEICO Indem. Co. (2009 NY Slip Op 50332(U))A demand for IME reports in a complaint does not establish a proper request for those reports.
- Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U))The insurer established timely mailing of IME notices and denials and the assignor's failure to attend the scheduled examinations.
- Tri-Mount Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50335(U))The insurer proved mailing of IME notices and timely denials and the assignor's nonappearance; the provider raised no triable issue.
- 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.
- A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2007 NY Slip Op 50663(U))The providers' summary judgment motion was denied because the insurer's affidavit sufficiently established mailing of the IME notices.