October 1, 2010
St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 51728(U))
https://www.beynensonlaw.com/case-law/st-vincent-med-care-p-c-v-clarendon-natl-ins-co-2010-ny-slip-op51728u/
- Decided
- October 1, 2010
- Citation
- 2010 NY Slip Op 51728(U) · 29 Misc 3d 127(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Issues
- IME no-show Medical necessity
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 St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 51728(U))
| St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co. |
| 2010 NY Slip Op 51728(U) [29 Misc 3d 127(A)] |
| Decided on October 1, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-1180 K C.
against
Clarendon National Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered November 3, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and granted the branch of a motion by plaintiff seeking to deem certain facts established for all purposes in the action.
ORDERED that the order, insofar as appealed from, is reversed without costs, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the Civil Court’s order as found that plaintiff had established its prima facie case and as denied defendant’s cross motion for summary judgment dismissing the complaint.
Defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).
Defendant denied the claim at issue in plaintiff’s first cause of action on the ground of lack of medical necessity. In support of its cross motion, defendant submitted an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the services provided. As the affirmation of plaintiff’s doctor submitted in opposition to the cross motion did not meaningfully refer to, let alone rebut, the [*2]conclusions set forth in the peer review report, the branch of defendant’s cross motion seeking summary judgment as to this cause of action should have been granted (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Defendant denied the claims at issue in plaintiff’s second, third and fourth causes of action based
upon plaintiff’s assignor’s failure to appear for properly scheduled independent medical examinations
(IMEs). In support of the branches of its cross motion seeking summary judgment as to those causes of
action, defendant submitted the affidavit of an employee of Media Referral Inc., which was hired by
defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices were sent to
the assignor on February 27, 2007 and March 9, 2007 in accordance with Media Referral’s standard
office practices and procedures (see Residential Holding Corp., 286 AD2d 679; Delta
Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted the affidavit of the doctor
who was to perform the IMEs to establish that the assignor had failed to appear for the duly scheduled
IMEs on March 8 and March 22, 2007 (see
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As
the appearance of the assignor at an IME is a condition precedent to the insurer’s liability on the policy
(see Insurance Department
Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d
720), the branches of defendant’s cross motion seeking summary judgment as to those causes of action
should have been granted.
Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied. In light of our determination, we do not reach the remaining contentions raised on appeal.
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: October 01, 2010
Legal questions (4)
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 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 scheduler's affidavit proved mailing of the IME notices and the examining doctor's affidavit proved the assignor's nonappearance, entitling the insurer to judgment on three causes of action.
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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it
Held the affirmed peer review set forth a factual basis and medical rationale, and the provider's doctor's affirmation did not meaningfully refer to or rebut it.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the insurer established timely mailing of its denial forms, including those denying claims on the IME no-show ground, before granting it judgment on that defense.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category.
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's standard-office-practice affidavit established timely mailing of its denials and the IME scheduler's affidavit established mailing of the IME notices.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U))The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
- Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U))The provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
- A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
- 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.
Cited by
A label shows how the later decision treated this one.
- Fiutek v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51840(U)) FollowedThe insurer proved the assignor's IME nonappearance, but conflicting mailing evidence prevented dismissal of one claim.
Similar decisions
- St. Vincent Med. Care, P.C. v Country-Wide Ins. Co. (2010 NY Slip Op 50444(U))Unanswered verification requests rendered seven claims premature, while separate-reimbursement denials raised factual issues on two others.
- St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2010 NY Slip Op 50488(U))Unanswered verification requests kept eight claims premature despite a follow-up mailed before the full response period expired.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations.
- Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51718(U))The insurer established timely IME notices and denials and the assignor's nonappearance, defeating a condition precedent to coverage.
- St. Vincent Med. Care, P.C. v Mercury Cas. Co. (2009 NY Slip Op 50810(U))The provider's principal's affirmation was inadmissible under CPLR 2106 and failed to rebut the insurer's medical-necessity showing.