December 22, 2017
Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2017 NY Slip Op 51869(U))
https://www.beynensonlaw.com/case-law/village-med-supply-inc-v-citiwide-auto-leasing-ins-co-2017-ny-slip-op51869u/
- Decided
- December 22, 2017
- Citation
- 2017 NY Slip Op 51869(U) · 58 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2017 NY Slip Op 51869(U))
| Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. |
| 2017 NY Slip Op 51869(U) [58 Misc 3d 141(A)] |
| Decided on December 22, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th
JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M.
SOLOMON, JJ
2015-962 K C
against
Citiwide Auto Leasing Ins. Co., Respondent.
Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant. Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 10, 2014. The order granted defendant’s 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).
Contrary to plaintiff’s contentions, the affirmation defendant submitted from the doctor who was to perform the IMEs of plaintiff’s assignor was sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and defendant established that the denial of claim forms which denied plaintiff’s claims on that ground had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff’s argument regarding the tolling of defendant’s time to pay or deny the claim lacks merit (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; cf. [*2]Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Plaintiff’s remaining contention is similarly without merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017
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.
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
Found the denial forms on the IME no-show ground timely mailed and rejected the provider's argument about tolling of the insurer's time to pay or deny.
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 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 affirmation of the doctor who was to perform the IMEs sufficient to establish the assignor's failure to appear, rejecting the provider's contentions.
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 insurer established that the denial of claim forms on the no-show ground were timely mailed.
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.
- 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.
- Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50258(U)) FollowedThe insurer's IME nonappearance denials were timely because it issued them within 30 days after receiving requested written verification.
Similar decisions
- 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.
- All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. (2011 NY Slip Op 50949(U))The insurer's affidavits established timely mailing of IME requests and denials and the assignor's failure to attend the IMEs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint.
- Medcare Supply, Inc. v Global Liberty Ins. (2020 NY Slip Op 50231(U))The insurer established timely mailing of IME notices and the denial, and the assignor's failure to attend the scheduled IMEs. The provider had obtained summary judgment in its assigned no-fault benefits action, while Civil Court denied the insurer's cross motion asserting the IME no-show defense.
- 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.
- Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am. (2016 NY Slip Op 50339(U))The insurer failed to establish IME nonappearance through affidavits that did not explain the doctors' recollections a year later.