December 10, 2021
Tyorkin v Repwest Ins. Co. (2021 NY Slip Op 51208(U))
https://www.beynensonlaw.com/case-law/tyorkin-v-repwest-ins-co-2021-ny-slip-op-51208u/
- Decided
- December 10, 2021
- Citation
- 2021 NY Slip Op 51208(U) · 73 Misc 3d 142(A)
- Posture
- Other motion
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Proof of mailing · No-show defense: insurer's proof (see the maps)
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 Tyorkin v Repwest Ins. Co. (2021 NY Slip Op 51208(U))
| Tyorkin v Repwest Ins. Co. |
| 2021 NY Slip Op 51208(U) [73 Misc 3d 142(A)] |
| Decided on December 10, 2021 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2019-1270 K C
against
Repwest Insurance Company, Respondent.
Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for appellant. Bryan Cave, LLP (Matthew A. Sarles and Adam S. Bird-Ridnell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered July 23, 2019. The order, upon, in effect, renewal, adhered to the determination in a prior order of that court entered May 24, 2018 denying plaintiff’s motion for summary judgment and granting defendant’s cross 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). By order entered May 24, 2018, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion. Plaintiff moved for leave to renew its motion for summary judgment and its opposition to defendant’s cross motion and, upon renewal, for an order granting plaintiff’s motion and denying defendant’s cross motion. Plaintiff supported its motion with an affidavit from its assignor, who simply stated that he had not received the IME scheduling letters. Defendant opposed the motion. Plaintiff appeals from an order of the Civil Court entered July 23, 2019, which, upon renewal, adhered to its prior determination denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s sole contention on appeal, the affidavit by plaintiff’s assignor failed to raise a triable issue of fact because plaintiff did not submit any evidence that the IME [*2]scheduling letters were not properly mailed. Plaintiff’s assignor’s bald conclusory denial of receipt was insufficient to rebut a presumption that the letters were received (see CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]; Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 10, 2021
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.
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 assignor's bald denial of receipt of the IME scheduling letters, without evidence that they were not properly mailed, did not rebut the presumption of receipt.
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.
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 assignor's affidavit merely denying receipt of the IME scheduling letters raised no triable issue, so dismissal on the IME no-show defense stood.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Nationwide Affinity Ins. Co. of Am. v George (2020 NY Slip Op 02801) FollowedThe insurer proved timely EUO notices, two nonappearances by each assignor, and timely denials; the providers raised no factual issue.
- Pomona Med. Diagnostics, P.C. v Travelers Ins. Co. (2011 NY Slip Op 50447(U)) FollowedThe provider's action was premature because it had not answered timely mailed verification requests before commencing suit.
Cited by
A label shows how the later decision treated this one.
- Citycare Chiropractic, P.C. v Repwest Ins. Co. (2022 NY Slip Op 50619(U)) FollowedThe assignor's conclusory denial of receiving IME scheduling letters did not rebut the insurer's proof of proper mailing and nonappearance.
Similar decisions
- Tyorkin v Global Liberty Ins. (2019 NY Slip Op 51689(U))The insurer established timely IME notices, the assignor's nonappearances, and timely denials based on failure to satisfy a coverage condition.
- Tyorkin v New Jersey Mfrs. Ins. Group (2022 NY Slip Op 51234(U))The provider's renewal motion failed because its affidavits supplied no new facts and no reasonable justification for their earlier omission.
- Tyorkin v Country Wide Ins. Co. (2017 NY Slip Op 51827(U))The insurer's evidence raised a factual issue about whether the assignor's injuries arose from an insured incident but did not warrant dismissal.
- Brand Med. Supply, Inc. v Repwest Ins. Co. (2019 NY Slip Op 51183(U))The provider's challenge to IME notice failed because the mailing address matched the address on its bill and the assignor's application.
- JCC Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51764(U))The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.