December 24, 2012

Seacoast Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52354(U))

https://www.beynensonlaw.com/case-law/seacoast-med-p-c-v-praetorian-ins-co-2012-ny-slip-op52354u/

Court: Appellate Term, First Department
Decided: December 24, 2012
Citation: 2012 NY Slip Op 52354(U) · 38 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show EUO no-show
Legal questions: No-show defense: insurer's proof · Proof of mailing (see the maps)

Cite as

Seacoast Med., P.C. v Praetorian Ins. Co., 38 Misc 3d 127(A), 2012 NY Slip Op 52354(U) (App Term, 1st Dept 2012)

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.

The insurer established timely and proper IME and EUO notices and the assignor's nonappearance, warranting dismissal. The provider sought assigned no-fault benefits, and the insurer appealed the portion of an order denying part of its summary judgment motion. The insurer proved mailing of both types of notices to the assignor and failure to appear. The provider did not specifically deny nonappearance or raise a triable issue concerning it, mailing, or the notices' reasonableness. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's motion in full, and dismissed the complaint.

Reported in New York Official Reports at Seacoast Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52354(U))

[*1]

Seacoast Med., P.C. v Praetorian Ins. Co.

2012 NY Slip Op 52354(U) [38 Misc 3d 127(A)]

Decided on December 24, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570724/12.

Seacoast Medical, P.C., a/a/o Tabari Salmon, Plaintiff-Respondent,
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated February 17, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), dated February 17, 2012, insofar as appealed from, reversed, without costs, motion granted in toto and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) and examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 24, 2012

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.

No-show defense: insurer's proof

Open the full map

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 timely and proper mailing of IME and EUO notices and the assignor's nonappearance, and the provider did not specifically deny nonappearance or contest mailing or reasonableness.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 93 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Proof of mailing

Open the full map

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 insurer established timely and proper mailing of the IME and EUO notices to the assignor, and the provider raised no triable issue as to the mailing.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) Contrasted (cf., but see)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.

Cited by

Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921)Failure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.

Similar decisions

Coast Med. Diagnostic, PC v Praetorian Ins. Co. (2013 NY Slip Op 50381(U))The insurer established timely and proper mailing of IME notices and the assignor's failure to appear, warranting summary judgment.
Searay Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51383(U))The insurer established timely and proper mailing of IME notices and the assignor's failure to appear, warranting summary judgment.
MDJ Med., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50895(U))The insurer proved timely mailing of IME and EUO notices and the assignor's repeated nonappearances.
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.
Shore Med. Diagnostic, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 52343(U))The insurer established mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue.