November 2, 2006
Vega Chiropractic, P.C. v Eveready Ins. Co. (2006 NY Slip Op 52238(U))
https://www.beynensonlaw.com/case-law/vega-chiropractic-p-c-v-eveready-ins-co-2006-ny-slip-op-52238u/
- Decided
- November 2, 2006
- Citation
- 2006 NY Slip Op 52238(U) · 13 Misc 3d 139(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- No-show defense: insurer's proof · Claimant's prima facie case on motions (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 Eveready Ins. Co. (2006 NY Slip Op 52238(U))
| Vega Chiropractic, P.C. v Eveready Ins. Co. |
| 2006 NY Slip Op 52238(U) [13 Misc 3d 139(A)] |
| Decided on November 2, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-1793 K C.
against
Eveready Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 28, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
In this action to recover assigned first-party no-fault benefits, defendant concedes receipt of the claim forms which are the subject of this action. Defendant’s contention that plaintiff failed to establish its prima facie case because plaintiff did not demonstrate the existence of an authenticated assignment is without merit since “the
lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same” (A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14, 16 [App Term, 2d & 11th Jud Dists 2005]). Since plaintiff established a prima facie case, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Defendant’s opposing papers established that plaintiff’s assignor was sent and received a request that she appear for pre-claim independent medical examinations (IMEs) and that prior to the date of the IMEs, defendant received a telephone call stating that plaintiff’s assignor would [*2]not be appearing for the IMEs. Since defendant issued timely denials of the subject claims which stated that said claims were denied due to the failure of plaintiff’s assignor to appear for the pre-claim IMEs, defendant rebutted the presumption that the services rendered by plaintiff were medically necessary (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc
3d 18, 22 [App Term, 2d & 11th Jud Dists 2004]). As a result, defendant’s opposition papers raised a triable issue of fact, and plaintiff’s motion for summary judgment was properly denied.
The remaining contentions lack merit.
Pesce P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: November 02, 2006
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: Proof on the no-show raises a question of fact; neither side wins the point as a matter of law
Held the insurer's opposition, showing pre-claim IME requests were sent to and received by the assignor, a call that she would not appear, and timely denials on that ground, rebutted the presumption of medical necessity and raised a triable issue.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 24 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider established its prima facie case, the insurer having conceded receipt of the claims, because lack of authentication of the assignor's signature was no defect absent a statutory or regulatory requirement.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 25032) FollowedAn insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2004 NY Slip Op 24527) FollowedA proven failure to attend a reasonably requested preclaim IME, timely raised in a denial, does not alone warrant dismissal.
Similar decisions
- Vega Chiropractic, P.C. v Clarendon Natl. Ins. Co. (2009 NY Slip Op 52536(U))The insurer established the assignor's failure to attend scheduled IMEs and timely mailing of the scheduling letters.
- 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.
- VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51074(U))The insurer proved timely mailing of IME notices and a denial, as well as the assignor's failure to attend the scheduled IMEs. An employee of the outside scheduling entity established mailing of the notices through standard office practices and procedures.
- Actual Chiropractic, P.C. v A. Cent. Ins. Co. (2016 NY Slip Op 50397(U))The insurer failed to establish timely mailing of the IME scheduling letters underlying its nonappearance defense.
- Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51758(U))The insurer established timely IME requests and denials and the assignor's failure to attend the scheduled examinations.