November 20, 2015

Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co. (2015 NY Slip Op 51721(U))

https://www.beynensonlaw.com/case-law/sharp-view-diagnostic-imaging-p-c-v-maya-assur-co-2015-ny-slip-op-51721u/

Court: Appellate Term, Second Department
Decided: November 20, 2015
Citation: 2015 NY Slip Op 51721(U) · 49 Misc 3d 149(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: IME no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co., 49 Misc 3d 149(A), 2015 NY Slip Op 51721(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 affidavit failed to establish office procedures ensuring proper addressing and mailing of IME scheduling letters. The provider appealed from summary judgment dismissing its action for assigned first-party no-fault benefits. Because the affidavit did not sufficiently describe a standard mailing practice, the insurer failed to show that the IMEs had been properly scheduled and that the assignor had failed to attend duly scheduled IMEs. The Appellate Term, Second Department, reversed the order granting the insurer's motion and denied summary judgment dismissing the complaint.

Reported in New York Official Reports at Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co. (2015 NY Slip Op 51721(U))

[*1]

Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co.

2015 NY Slip Op 51721(U) [49 Misc 3d 149(A)]

Decided on November 20, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1348 K C

Sharp View Diagnostic Imaging, P.C. as Assignee of AHMED RIZWAN, Appellant,

against

Maya Assurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 13, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Delta Diagnostic Radiology, P.C. v Maya Assur. Co., 47 Misc 3d 151[A], 2015 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 20, 2015

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 proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's affidavit insufficient because it did not set forth a standard office practice or procedure ensuring the IME scheduling letters were properly addressed and mailed.

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, 256 (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 failed to prove the scheduling letters were mailed or properly addressed

Held the IME no-show defense failed because the insurer's affidavit did not describe a standard office practice ensuring the IME scheduling letters were properly addressed and mailed, so it did not show duly scheduled IMEs.

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, 111 (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.
Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish its prima facie case.

Similar decisions

Personal Touch Med. Care, P.C. v Maya Assur. Co. (2017 NY Slip Op 51823(U))The insurer failed to establish proper mailing of IME scheduling letters and therefore did not prove nonappearance at duly scheduled IMEs. Its affidavit did not sufficiently describe a standard office practice or procedure ensuring that the scheduling letters were properly addressed and mailed.
Harvard Med., P.C. v Maya Assur. Co. (2016 NY Slip Op 51529(U))The insurer failed to prove proper addressing and mailing of IME scheduling letters, defeating summary judgment on nonappearance.
Sharp View Diagnostic Imaging, P.C. v Esurance (2017 NY Slip Op 51466(U))The insurer's EUO letters supported tolling, and its proof established the assignor's failure to appear for the EUOs. The provider argued that the insurer relied on letters seeking no documents or information to toll the time to pay or deny.
Gl Acupuncture, P.C. v Maya Assur. Co. (2016 NY Slip Op 50310(U))The insurer failed to establish duly scheduled IMEs because its affidavit did not adequately prove mailing of the notices.
Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2016 NY Slip Op 50308(U))The insurer failed to prove proper mailing of IME notices, and the provider failed to establish prima facie entitlement to summary judgment.