October 18, 2019
Valdan Acupuncture, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51705(U))
https://www.beynensonlaw.com/case-law/valdan-acupuncture-p-c-v-global-liberty-ins-co-of-ny-2019-ny-slip-op51705u/
- Decided
- October 18, 2019
- Citation
- 2019 NY Slip Op 51705(U)
- Posture
- Summary judgment
- Outcome
- Split result
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 Valdan Acupuncture, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51705(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Global Liberty Ins. Co. of NY, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Selina Chin and David M. Gottlieb of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered June 11, 2018. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion to compel discovery and denied the branch of defendant’s cross motion seeking summary judgment dismissing, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations, so much of the complaint as sought to recover upon a claim for the sum of $1,224.22.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations, so much of the complaint as sought to recover upon a claim for the sum of $1,224.22 is granted; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as granted plaintiff’s motion to compel discovery and denied the branch of defendant’s cross motion which had sought summary judgment dismissing so much of the complaint as sought to recover upon a claim for the sum of $1,224.22 on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).
Defendant established that initial and follow-up letters scheduling IMEs had been timely [*2]mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claim seeking to recover the sum of $1,224.22 had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to the branch of defendant’s cross motion seeking summary judgment dismissing, on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs, so much of the complaint as sought to recover upon a claim for the sum of $1,224.22, defendant is entitled to summary judgment on this branch of its cross motion.
Defendant failed to establish any basis to disturb the Civil Court’s order granting plaintiff’s motion to compel discovery.
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs, so much of the complaint as sought to recover upon a claim for the sum of $1,224.22 is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019
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.
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 timely mailing of initial and follow-up IME scheduling letters and the assignor's nonappearance on both dates, and the provider raised no triable issue.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (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, as part of its IME no-show defense, that the claim had been timely denied on the ground of the assignor's nonappearance.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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 established that its initial and follow-up IME scheduling letters were timely mailed and that the claim was timely denied.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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
- Valdan Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 50739(U))The insurer preserved its IME nonappearance defense for one claim but omitted that ground from the denials of three others.
- Valdan Acupuncture, P.C. v 21st Century Advantage Ins. Co. (2019 NY Slip Op 50822(U))An insurer may submit reply evidence responding to an IME-address objection first raised in opposition to summary judgment.
- NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
- Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co. (2019 NY Slip Op 51098(U))The provider's claim was barred by res judicata because its assignment followed commencement of the insurer's declaratory judgment action.
- Refill RX Pharmacy, Inc. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51702(U))The insurer's cross motion for summary judgment based on the assignor's IME nonappearances was granted on appeal.