February 26, 2007
Vega Chiropractic, P.C. v Eveready Ins. Co. (2007 NY Slip Op 50363(U))
https://www.beynensonlaw.com/case-law/vega-chiropractic-p-c-v-eveready-ins-co-2007-ny-slip-op-50363u/
- Decided
- February 26, 2007
- Citation
- 2007 NY Slip Op 50363(U) · 14 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- No-show defense: insurer's proof · Challenging the assignment of benefits (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. (2007 NY Slip Op 50363(U))
| Vega Chiropractic, P.C. v Eveready Ins. Co. |
| 2007 NY Slip Op 50363(U) [14 Misc 3d 142(A)] |
| Decided on February 26, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and BELEN, JJ
2005-1800 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 as “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 indicate that defendant mailed assignor a request that she appear for pre-claim independent medical examinations (IMEs), that assignor received the scheduling notice and failed to appear, that defendant timely sent (11 NYCRR 65-3.6 [b]), and assignor received, a follow-up IME scheduling notice, and that assignor again failed to appear. This proof sufficed to warrant the motion’s denial (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Pesce, P.J., Rios and Belen, JJ., concur.
[*2]
Decision Date: February 26, 2007
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 proof that it mailed pre-claim IME notices and a timely follow-up, and that the assignor received both and failed to appear, sufficed to defeat the provider's summary judgment motion.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 24 (this one included) are in the same category.
Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?
This decision: On the merits, the assignment or the claimant's showing is adequate, or the alleged defect is not a defect (rules on the question, but another ground decided the case)
Rejected the insurer's argument that the provider's prima facie case failed for lack of an authenticated assignment, because no statute or regulation requires authentication of the assignor's signature.
Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 31 (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. (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
- 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.
- Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))The insurer established timely IME notices and the assignor's nonappearance, defeating the provider's claims.