August 16, 2019

American Chiropractic Care, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51359(U))

https://www.beynensonlaw.com/case-law/american-chiropractic-care-p-c-v-hereford-ins-co-2019-ny-slip-op51359u/

Court: Appellate Term, Second Department
Decided: August 16, 2019
Citation: 2019 NY Slip Op 51359(U)
Posture: Summary judgment
Outcome: Split result
Issues: IME no-show Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

American Chiropractic Care, P.C. v Hereford Ins. Co., 2019 NY Slip Op 51359(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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.

The insurer failed to establish timely IME scheduling, and the provider failed to establish its prima facie entitlement to payment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its cross motion for summary judgment, and denied that cross motion; the insurer's summary judgment motion remained denied. The first IME scheduling letter was mailed more than 30 days after receipt of the claims, defeating the insurer's showing that the assignor breached a condition precedent to coverage. Under Insurance Law § 5106 (a), the provider's proof failed to establish either untimely denials or timely denials that were conclusory, vague, or without merit as a matter of law.

Reported in New York Official Reports at American Chiropractic Care, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51359(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

American Chiropractic Care, P.C., as Assignee of Tyrell E. Crenshaw, Respondent,
against
Hereford Insurance Company, Appellant.

Goldberg Miller & Rubin (Ruth Nazarian and Harlan Schreiber of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Andrew Borrok, J.), entered September 19, 2017, deemed from a judgment of that court entered December 1, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 19, 2017 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,800.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered September 19, 2017, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. A judgment was subsequently entered on December 1, 2017, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The Civil Court properly found that defendant’s moving papers failed to establish, as a matter of law, that the first IME scheduling letter sent to plaintiff’s assignor had been timely, as the record indicates that it was mailed more than 30 days after defendant had received the claims at issue (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, as defendant failed to demonstrate its entitlement to summary judgment based upon plaintiff’s failure to comply with a condition [*2]precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

Plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its cross motion failed to establish either that the claims at issue had not been timely denied or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 16, 2019

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to make its prima facie showing because its proof did not establish that the claims had not been timely denied or that timely denials were conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 246 (this one included) are in the same category.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements

Held the insurer failed to establish its IME no-show defense because the record showed the first IME scheduling letter was mailed more than 30 days after it received the claims.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 99 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U)) FollowedThe insurer's EUO requests were untimely because they followed receipt of the bills by more than 15 business days and 30 calendar days.
O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U))The insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.
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 Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Success Rehab, PT, P.C. v Hereford Ins. Co. (2019 NY Slip Op 52031(U))The insurer's IME no-show defense failed on nine claims because the first IME was scheduled beyond 30 days after receipt.
Total Chiropractic, P.C. v Hereford Ins. Co. (2020 NY Slip Op 51362(U))The provider failed to establish its prima facie case, and the insurer failed to schedule the initial IME within the required 30 days.
Total Chiropractic, P.C. v Integon Natl. Ins. Co. (2021 NY Slip Op 50443(U))The insurer's affidavit failed to establish proper mailing of IME notices, and the provider failed to show entitlement to summary judgment.
Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2014 NY Slip Op 51803(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51270(U))The provider and insurer failed to establish entitlement to summary judgment on the first through fifth causes of action.