November 16, 2018
SAMA Physical Therapy, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51635(U))
https://www.beynensonlaw.com/case-law/sama-physical-therapy-p-c-v-tri-state-consumers-ins-co-2018-ny-slipop-51635u/
- Decided
- November 16, 2018
- Citation
- 2018 NY Slip Op 51635(U) · 61 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 SAMA Physical Therapy, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51635(U))
| SAMA Physical Therapy, P.C. v Tri State Consumers Ins. Co. |
| 2018 NY Slip Op 51635(U) [61 Misc 3d 141(A)] |
| Decided on November 16, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on November 16, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1132 K C
against
Tri State Consumers Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Peter Coates, Esq., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 11, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).
Contrary to plaintiff’s arguments, defendant’s proof sufficiently established the proper mailing of the IME scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018
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 insurer's proof sufficiently established the proper mailing of the IME scheduling letters.
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.
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
Rejected the provider's arguments and held the insurer's proof established proper mailing of the IME scheduling letters and the assignor's failure to appear for the IMEs.
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.
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.
Similar decisions
- Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51186(U))The insurer's proof supported a presumption that the IME scheduling letters and denial forms had been properly mailed.
- Sama Physical Therapy, P.C. v Global Liberty Ins. (2017 NY Slip Op 51736(U))The insurer failed to prove timely IME notices, and the provider failed to establish entitlement to judgment on its claims.
- Acupuncture Now, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51596(U))The insurer's cross motion for summary judgment dismissing the claims for the assignor's IME nonappearance was upheld on appeal.
- JCC Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51764(U))The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
- Sama Physical Therapy, P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 51751(U))The insurer failed to establish timely EUO scheduling for the first two claims but timely denied the third claim for nonappearance.