September 16, 2011
Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51718(U))
https://www.beynensonlaw.com/case-law/vincent-med-servs-p-c-v-new-york-cent-mut-fire-ins-co-2011-ny-slip-op51718u/
- Decided
- September 16, 2011
- Citation
- 2011 NY Slip Op 51718(U) · 32 Misc 3d 143(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
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 Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51718(U))
| Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2011 NY Slip Op 51718(U) [32 Misc 3d 143(A)] |
| Decided on September 16, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2009-1989 Q C.
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 30, 2009. The order, insofar as appealed from, in effect, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint based upon, among other things, plaintiff’s assignor’s failure to attend independent medical examinations (IMEs), which had been scheduled by Allegiance Health, Inc. (Allegiance). The Civil Court, in effect, denied both the motion and the cross motion. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.
In support of its cross motion, defendant submitted an affidavit of an employee of Allegiance which sufficiently established that the IME requests had been timely mailed in accordance with Allegiance’s standard office 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 an affidavit of the chiropractor/acupuncturist who was to perform the IMEs, which was sufficient to establish 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]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the claim denial forms, which denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly [*2]denied plaintiff’s claims based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]). Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of our determination, we need not reach the remaining contentions raised on appeal.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 2011
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.
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 proved the IME no-show defense with the scheduler's mailing affidavit and the examiner's affidavit of nonappearance, so its cross motion should have been granted.
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.
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 (rules on the question, but another ground decided the case)
Held the insurer was not precluded from its IME no-show defense because its denials on that ground were shown timely mailed under its standard office practices.
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 (rules on the question, but another ground decided the case)
Held office-practice affidavits sufficient to establish timely mailing of both the IME requests and the claim denial forms.
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.
- 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.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
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.
- St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 51728(U))The insurer established lack of medical necessity for the first cause of action and IME nonappearance for the other three causes.
- 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.
- Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51230(U))The insurer established lack of medical necessity on two claims and the assignor's IME nonappearance on the third.
- Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51862(U))The insurer's proof established timely IME notices and denials and the assignor's nonappearances, warranting summary judgment.