May 3, 2019

Serge Chiropractic Servs., P.C. v Farmington Cas. Co. (2019 NY Slip Op 50698(U))

https://www.beynensonlaw.com/case-law/serge-chiropractic-servs-p-c-v-farmington-cas-co-2019-ny-slip-op-50698u/

Court: Appellate Term, Second Department
Decided: May 3, 2019
Citation: 2019 NY Slip Op 50698(U) · 63 Misc 3d 147(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: IME no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Serge Chiropractic Servs., P.C. v Farmington Cas. Co., 63 Misc 3d 147(A), 2019 NY Slip Op 50698(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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's motion for summary judgment dismissing the claims based on the assignor's failure to appear for IMEs was upheld. The Appellate Term, Second Department, affirmed, finding sufficient proof of proper mailing of the scheduling letters under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., rejecting the provider's challenges.

Reported in New York Official Reports at Serge Chiropractic Servs., P.C. v Farmington Cas. Co. (2019 NY Slip Op 50698(U))

[*1]

Serge Chiropractic Servs., P.C. v Farmington Cas. Co.

2019 NY Slip Op 50698(U) [63 Misc 3d 147(A)]

Decided on May 3, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-805 K C

Serge Chiropractic Services, P.C., as Assignee of Orane Robinson, Appellant,

against

Farmington Casualty Company, Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 9, 2016. The order granted defendant’s 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 granted defendant’s 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. JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019

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.

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

Held the insurer's proof sufficiently established proper mailing of the IME scheduling letters, rejecting the provider's challenge.

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 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (this one included) are in the same category.

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 proper mailing of the IME scheduling letters and the assignor's failure to appear, so summary judgment dismissing the complaint was affirmed.

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

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 518 (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

Actual Chiropractic, P.C. v A. Cent. Ins. Co. (2016 NY Slip Op 50397(U))The insurer failed to establish timely mailing of the IME scheduling letters underlying its nonappearance defense.
Restoration Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51325(U))The insurer established proper mailing of IME scheduling letters and denial forms, as well as the assignor's nonappearance.
Pro-Align Chiropractic, P.C. v Integon Natl. Ins. Co. (2019 NY Slip Op 51967(U))The insurer proved timely mailing of the IME scheduling letters and denials and the assignor's failure to attend the scheduled IMEs. The provider appealed the grant of summary judgment dismissing its assigned no-fault benefits complaint and the denial of its cross-motion branch seeking discovery responses.
BCc Chiropractic, P.C. v Farmers New Century Ins. Co. (2019 NY Slip Op 50680(U))The insurer established timely EUO notices, the assignor's nonappearance on both scheduled dates, and a timely denial on that ground.
S & R Med., P.C. v ELRAC, Inc. (2018 NY Slip Op 50834(U))The self-insurer's summary judgment dismissal for the assignor's IME nonappearance was affirmed on mailing and nonappearance proof.