May 14, 2021

Total Chiropractic, P.C. v Integon Natl. Ins. Co. (2021 NY Slip Op 50443(U))

https://www.beynensonlaw.com/case-law/total-chiropractic-p-c-v-integon-natl-ins-co-2021-ny-slip-op50443u/

Court: Appellate Term, Second Department
Decided: May 14, 2021
Citation: 2021 NY Slip Op 50443(U)
Posture: Summary judgment
Outcome: Split result
Issues: IME no-show Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Total Chiropractic, P.C. v Integon Natl. Ins. Co., 2021 NY Slip Op 50443(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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 proper mailing of IME notices, and the provider failed to show entitlement to summary judgment. The insurer's affidavit did not sufficiently describe an office practice ensuring that scheduling letters were properly addressed and mailed. It therefore failed to establish duly scheduled IMEs or the assignor's nonappearance. The provider's affidavit also failed to establish either an untimely denial or a timely denial that was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving denial of the provider's motion in place.

Reported in New York Official Reports at Total Chiropractic, P.C. v Integon Natl. Ins. Co. (2021 NY Slip Op 50443(U))

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

Total Chiropractic, P.C., as Assignee of Sanders, Leander, Appellant,
against
Integon National Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 28, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its cross motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) were 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 were properly scheduled and, thus, that plaintiff’s assignor 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 Neptune Med. Care, P.C. v Praetorian Ins. Co., 64 Misc 3d 132[A], 2019 NY Slip Op 51052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021

Legal questions (3)

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed its prima facie burden because its affidavit did not show the claim had not been timely denied or that a timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Proof of mailing

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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 did not sufficiently set forth a standard office practice ensuring the IME scheduling letters were properly addressed and mailed, so mailing was not proved.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (this one included) are in the same category.

No-show defense: insurer's proof

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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 insurer not entitled to dismissal because, without proof the IME scheduling letters were properly mailed, it could not show the IMEs were duly scheduled or that the assignor failed to appear.

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

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (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.
Neptune Med. Care, P.C. v Praetorian Ins. Co. (2019 NY Slip Op 51052(U))The insurer failed to establish timely mailing of the initial and follow-up EUO and IME scheduling letters.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Total Chiropractic, P.C. v Hereford Ins. Co. (2020 NY Slip Op 51362(U))The provider failed to establish its prima facie case, and the insurer failed to schedule the initial IME within the required 30 days.
Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2017 NY Slip Op 51843(U))The insurer failed to prove mailing of IME notices, and the provider failed to establish its prima facie entitlement to summary judgment.
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.
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.
American Chiropractic Care, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51359(U))The insurer failed to establish timely IME scheduling, and the provider failed to establish its prima facie entitlement to payment.