August 31, 2009
Vega Chiropractic, P.C. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52536(U))
https://www.beynensonlaw.com/case-law/vega-chiropractic-p-c-v-clarendon-natl-ins-co-2009-ny-slip-op52536u/
- Decided
- August 31, 2009
- Citation
- 2009 NY Slip Op 52536(U) · 25 Misc 3d 144(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- No-show defense: insurer's proof · Proof of mailing (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 Vega Chiropractic, P.C. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52536(U))
| Vega Chiropractic, P.C. v Clarendon Natl. Ins. Co. |
| 2009 NY Slip Op 52536(U) [25 Misc 3d 144(A)] |
| Decided on August 31, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., RIOS and STEINHARDT, JJ
2008-1575 K C.
against
Clarendon National Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered April 24, 2008. The order granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment.Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion.
Contrary to plaintiff’s contention, defendant’s motion for summary judgment established that plaintiff’s assignor failed to attend scheduled chiropractic/acupuncture independent medical examinations (IMEs) and that the letters scheduling said IMEs were timely sent pursuant to the standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff’s remaining contention lacks merit.
Accordingly, we find that the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]) and denied plaintiff’s cross motion for summary judgment.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: August 31, 2009
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 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 established that the assignor failed to attend the scheduled IMEs and that the scheduling letters were timely sent under a standard office mailing practice.
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.
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 IME scheduling letters were shown timely sent pursuant to a standard office practice designed to ensure proper addressing and mailing.
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.
- 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.
- Tuncel v Progressive Cas. Ins. Co. (2008 NY Slip Op 52455(U)) FollowedThe insurer's chiropractor established that the assignor missed an IME at the office address stated in the scheduling letters.
Similar decisions
- Vega Chiropractic, P.C. v Eveready Ins. Co. (2006 NY Slip Op 52238(U))The insurer raised a triable issue by showing notice of pre-claim IMEs, announced nonattendance, and timely denials based on nonappearance.
- Vega Chiropractic, P.C. v Kemper Independence Ins. Co. (2011 NY Slip Op 52291(U))The provider failed to raise a factual issue about the reasonableness of scheduling the IMEs that its assignor missed.
- Vega Chiropractic, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51853(U))The provider's summary judgment motion was denied and the insurer's cross motion to dismiss the assigned no-fault claims was granted.
- Axis Chiropractic, PLLC v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50753(U))The insurer established timely mailing of IME notices and denials and the assignors' failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, affidavits from the scheduling company's president established timely mailing through standard office practices and procedures.
- Vit Acupuncture, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 52000(U))The insurer's affidavits established timely IME notices and denials and the assignor's failure to attend the scheduled IMEs. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment dismissing the complaint.