September 20, 2019
Satya Drug Corp. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51505(U))
https://www.beynensonlaw.com/case-law/satya-drug-corp-v-global-liberty-ins-co-of-n-y-2019-ny-slip-op51505u/
- Decided
- September 20, 2019
- Citation
- 2019 NY Slip Op 51505(U) · 65 Misc 3d 127(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Declined to follow in 1 and contrasted (cf., but see) in 2 later decisions (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 Satya Drug Corp. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51505(U))
| Satya Drug Corp. v Global Liberty Ins. Co. of N.Y. |
| 2019 NY Slip Op 51505(U) [65 Misc 3d 127(A)] |
| Decided on September 20, 2019 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2019
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570002/19
against
Global Liberty Insurance Company of New York, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Debra R. Samuels, J.), entered November 27, 2018, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Debra R. Samuels, J.), entered November 27, 2018, affirmed, with $10 costs.
Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action was properly denied, inasmuch as it failed to submit competent evidence of the assignor’s nonappearance at scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affirmation of defendant’s IME doctor lacked probative value, since he failed to adequately state the basis of his recollection, some 16 months later, that the assignor did not appear on the scheduled IME dates (see Utica Acupuncture P.C. v Amica Mut. Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op50331[U][App Term, 1st Dept 2017]; Five Boro Med. Equip., Inc. V Praetorian Ins. Co., 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U] [App Term, 1st Dept 2016]). Nor was personal knowledge of the assignor’s nonappearance established by the affidavit from the IME schedulingvendor. “The ‘mere fact that the recording of [the] third-party statements [of nonappearances] by the [IME doctor] might be routine, imports no guarantee of the truth, or even reliability, of those statements’ (Matter of Leon RR, 48 NY2d 117, 123 [1979]; cf. Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508 [2015]” (Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept 2016]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: September 20, 2019
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 the insurer failed to prove the IME nonappearances because the IME doctor's conclusory affirmation did not explain his recollection 16 months later and the scheduling vendor's affidavit showed no personal knowledge.
Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 14 (this one included) are in the same category. 4 decisions in other departments that cite or are cited by this one are on the full map.
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.
- Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U)) FollowedThe insurer failed to submit competent proof that the assignor missed the scheduled IMEs. The IME doctor's conclusory affirmation did not adequately explain the basis for recalling, approximately two years later, that the assignor had not appeared on the scheduled dates.
- Five Boro Med. Equip., Inc. v Praetorian Ins. Co. (2016 NY Slip Op 51481(U))The insurer's IME doctors' conclusory affidavits failed to establish the assignor's nonappearance at scheduled IMEs. The insurer obtained summary judgment dismissing the provider's first-party no-fault action.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) Contrasted (cf., but see)A provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Metro 8 Med. Equip., Inc. v ELRAC, Inc. (2016 NY Slip Op 50174(U)) FollowedThe insurer failed to submit competent proof that the assignor missed scheduled IMEs. The Appellate Term, First Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion.
Cited by
A label shows how the later decision treated this one.
- Advanced Recovery v Allstate Ins. Co. (2021 NY Slip Op 21148) Declined to followThe examiners' affidavits established IME nonappearance despite being sworn over three years later without explaining the basis of recollection.
- SVP Med Supply, Inc. (B) v GEICO (2022 NY Slip Op 50585(U)) Contrasted (cf., but see)The insurer's submissions established timely mailing of EUO notices and denials and the provider's failure to appear for scheduled EUOs. An affidavit described the insurer's standard office practices and procedures for mailing the scheduling letters and denial forms.
- Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 51072(U)) Contrasted (cf., but see)The insurer established the assignors' IME nonappearances, and the provider failed to rebut that showing.
Similar decisions
- Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am. (2016 NY Slip Op 50339(U))The insurer failed to establish IME nonappearance through affidavits that did not explain the doctors' recollections a year later.
- 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.
- Medcare Supply, Inc. v Global Liberty Ins. (2020 NY Slip Op 50231(U))The insurer established timely mailing of IME notices and the denial, and the assignor's failure to attend the scheduled IMEs. The provider had obtained summary judgment in its assigned no-fault benefits action, while Civil Court denied the insurer's cross motion asserting the IME no-show defense.
- S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))The insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices.
- 21st Century Pharm., Inc. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51377(U))The insurer established timely mailing of IME scheduling letters and the assignor's failure to appear for the duly scheduled examinations.