October 18, 2012
W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 52046(U))
https://www.beynensonlaw.com/case-law/w-h-o-acupuncture-p-c-v-kemper-independence-ins-co-2012-ny-slip-op52046u/
- Decided
- October 18, 2012
- Citation
- 2012 NY Slip Op 52046(U) · 37 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
- Legal questions
- No-show defense: insurer's proof (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 W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 52046(U))
| W.H.O. Acupuncture, P.C. v Kemper Independence Ins. Co. |
| 2012 NY Slip Op 52046(U) [37 Misc 3d 133(A)] |
| Decided on October 18, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON and RIOS, JJ
.
against
Kemper Independence Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 23, 2010. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $514.08, $385.56, $471.24, and $85.68 for services rendered on April 2, 2008. The appeal is deemed to be from a judgment of the same court entered November 5, 2010 dismissing that portion of the complaint (see CPLR 5501 [c]).
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $514.08, $385.56, $471.24, and $85.68 for services rendered on April 2, 2008 due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs). A judgment dismissing that portion of the complaint was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Plaintiff’s argument on appeal that the assignor was not required to respond to the IME requests because they came from a third party lacks merit, as the scheduling letters ” clearly apprised the assignor’ that they were being sent on defendant’s behalf'” (W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51057[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As defendant’s remaining contentions are equally devoid of merit, the judgment is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 18, 2012
Legal questions
A question 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
Upheld dismissal on the IME no-show, rejecting the argument that the assignor need not respond to letters from a third party because the letters clearly stated they were sent on the insurer's behalf.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
Cited in this decision
- W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co. (2012 NY Slip Op 51707(U))The insurer failed to schedule the first IME within 30 days of receiving two claims, defeating summary judgment on those claims.
- Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co. (2010 NY Slip Op 51057(U))EUO notices sent by retained counsel are not nullities when they identify the insurer's retention of counsel and are sent on its behalf.
Similar decisions
- W.H.O. Acupuncture, P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50883(U))The insurer's summary judgment dismissal was upheld because the record showed no factual issue about whether it denied the claims.
- W.H.O. Acupuncture, P.C. v GEICO Indem. Co. (2017 NY Slip Op 51900(U))The insurer's sworn IME report established a lack of medical necessity for the acupuncture services at issue.
- W.H.O. Acupuncture, P.C. v State-Wide Ins. Co. (2011 NY Slip Op 52298(U))The insurer admitted mailing its denial after 30 days and failed to establish a verification toll, defeating summary judgment.
- W.H.O. Acupuncture, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51856(U))The provider's summary judgment motion was denied and the insurer's cross motion to dismiss the assigned no-fault claims was granted.
- Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted.