April 7, 2014
Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))
https://www.beynensonlaw.com/case-law/village-med-supply-inc-v-ny-cent-mut-fire-ins-co-2014-ny-slip-op50631u/
- Decided
- April 7, 2014
- Citation
- 2014 NY Slip Op 50631(U) · 43 Misc 3d 133(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 NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))
| Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. |
| 2014 NY Slip Op 50631(U) [43 Misc 3d 133(A)] |
| Decided on April 7, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-3267 K C.
against
NY Central Mutual Fire Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered October 18, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs).
Defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Defendant received the claims at issue after plaintiff’s assignor had failed to appear for IMEs with two different healthcare professionals. Defendant alleged that it had denied one of these claims within 30 days of its receipt and that it had requested verification on the other claim and then denied that claim within 30 days of its receipt of the requested verification. An affidavit executed by defendant’s litigation examiner sufficiently described the standard mailing practices and procedures for the timely mailing of verification requests and denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). It is noted that, contrary to plaintiff’s argument on appeal, defendant’s follow-up verification request complied with Insurance Department Regulations (11 NYCRR) § 65-3.6 (b).
Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 2014
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
Held claims received after the assignor's IME no-shows were timely denied, one within 30 days of receipt and the other within 30 days of receiving requested verification under a compliant follow-up request.
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
Held the IME scheduler's and litigation examiner's affidavits sufficiently described standard mailing practices to prove timely mailing of the IME scheduling letters, verification requests and denials.
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.
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 IME scheduler's affidavit proved mailing of the scheduling letters and the examining professionals' affidavits proved the assignor's nonappearance, warranting summary judgment for the insurer.
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.
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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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
- By MD, P.C. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51232(U))The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices.
- Village Med. Supply, Inc. v Citiwide Auto Leasing Ins. Co. (2017 NY Slip Op 51869(U))The insurer proved the assignor's IME nonappearance through the examining doctor's affirmation and established timely mailing of denials.
- J.C. Healing Touch Rehab, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50635(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.
- 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.
- 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.