June 17, 2013
Right Aid Diagnostic Medicine, P.C. v Travelers Ins. Co. (2013 NY Slip Op 51033(U))
https://www.beynensonlaw.com/case-law/right-aid-diagnostic-medicine-p-c-v-travelers-ins-co-2013-ny-slip-op51033u/
- Decided
- June 17, 2013
- Citation
- 2013 NY Slip Op 51033(U) · 40 Misc 3d 126(A)
- 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 Right Aid Diagnostic Medicine, P.C. v Travelers Ins. Co. (2013 NY Slip Op 51033(U))
| Right Aid Diagnostic Medicine, P.C. v Travelers Ins. Co. |
| 2013 NY Slip Op 51033(U) [40 Misc 3d 126(A)] |
| Decided on June 17, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 ALIOTTA, JJ
2011-2261 Q C.
against
Travelers Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered June 9, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
In support of its cross motion for summary judgment, defendant submitted an affidavit by an employee of the entity which had scheduled, on behalf of defendant, the independent medical examinations (IMEs) involved herein. The affidavit established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [*2][App Term, 2d & 11th Jud Dists 2007]). In addition, the affidavits submitted by defendant demonstrated that its denial of claim forms, which denied the claims in question based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affirmation by its examining physician and affidavits by its examining chiropractor, psychologist and acupuncturist, respectively, each of which stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as, in opposition to the motion, plaintiff submitted only an affirmation of counsel, which affirmation failed to raise a triable issue of fact, the Civil Court should have granted defendant’s cross motion for summary judgment dismissing the complaint.
Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 17, 2013
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
Granted the insurer summary judgment because it proved timely mailing of the IME letters and the examiners' affidavits showed the assignor failed to appear; counsel's affirmation raised no triable issue.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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)
Found the insurer showed that its denial of claim forms, based on the assignor's IME nonappearance, had been timely mailed, as part of its prima facie showing.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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 scheduler's employee affidavit established timely mailing of the IME scheduling letters, and the insurer's affidavits established timely mailing of the denial of claim forms.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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.
Similar decisions
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))The insurer's affidavits established timely mailing of the IME notices and denials and the assignor's failure to appear.
- 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.
- Jamhil Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51644(U))The insurer established timely mailing of IME notices and a denial based on the assignor's failure to appear for the scheduled IMEs. The president of the independent medical review service retained to schedule the examinations established timely mailing of the scheduling letters.
- Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51758(U))The insurer established timely IME requests and denials and the assignor's failure to attend the scheduled examinations.
- 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.