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September 4, 2007

Midisland Med., PLLC v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51983(U))

https://www.beynensonlaw.com/case-law/midisland-med-pllc-v-new-york-cent-mut-ins-co-2007-ny-slip-op51983u/

Court
Appellate Term, Second Department
Decided
September 4, 2007
Citation
2007 NY Slip Op 51983(U) · 17 Misc 3d 130(A)
Posture
Summary judgment
Outcome
Provider prevailed
Issues
IME no-show
Legal questions
No-show defense: insurer's proof (see the maps)
Cite as
Midisland Med., PLLC v New York Cent. Mut. Ins. Co., 17 Misc 3d 130(A), 2007 NY Slip Op 51983(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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 raise a triable issue on its IME no-show defense because it lacked an affidavit based on personal knowledge. The provider obtained summary judgment on assigned no-fault claims after Civil Court found that the insurer had not established timely mailing of its denials. The Appellate Term, Second Department, affirmed the resulting judgment on a different ground: the insurer submitted no affidavit from anyone with personal knowledge of the assignor's nonappearance. The provider's prima facie showing was unchallenged, and the appellate court expressly declined to review it.

Reported in New York Official Reports at Midisland Med., PLLC v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 51983(U))

[*1]
Midisland Med., PLLC v New York Cent. Mut. Ins. Co.
2007 NY Slip Op 51983(U) [17 Misc 3d 130(A)]
Decided on September 4, 2007
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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1356 Q C.
Midisland Medical, PLLC a/a/o JEFF CAYOT, Respondent,

against

New York Central Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered May 4, 2006, deemed an appeal from a judgment entered June 21, 2006 (see CPLR 5501 [c]). The judgment, entered upon the May 4, 2006 order which granted plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,302.30.

Judgment affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that it timely denied plaintiff’s claims based upon the failure of plaintiff’s assignor to appear for independent medical examinations. The court granted plaintiff’s motion, holding that defendant
failed to establish that the denial of claim forms were timely mailed. Thereafter a judgment was entered.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto. While defendant denied these claims based upon the assignor’s failure to appear for scheduled independent medical examinations, defendant did not submit an affidavit from someone with personal knowledge regarding the assignor’s failure to appear. As a result, defendant failed to raise a triable issue of fact with [*2]regard to said claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; First Help Acupuncture, P.C. v Progressive Northeastern Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51167[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the judgment is affirmed, albeit on other grounds.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

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.

No-show defense: insurer's proof

Open the full map

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

This decision: Insurer failed to prove the nonappearance by someone with personal knowledge

Held the insurer raised no triable issue on its IME no-show defense because it submitted no affidavit from anyone with personal knowledge of the assignor's failure to appear.

  • Appellate DivisionApp Div 8
  • Appellate TermApp Term 741
  • Trial courtsTrial 88
2023, Appellate Division: 1 decision (1 Defense proved)2020, Appellate Division: 1 decision (1 Defense proved)2016, Appellate Division: 2 decisions (2 Mailing not proved)2014, Appellate Division: 2 decisions (2 Defense proved)2006, Appellate Division: 1 decision (1 Mailing not proved)2004, Appellate Division: 1 decision (1 No-show excused)2023, Appellate Term: 4 decisions (4 Defense proved)2022, Appellate Term: 42 decisions (34 Defense proved, 3 Mailing not proved, 3 Nonappearance not proved, 2 Requests not compliant)2021, Appellate Term: 22 decisions (16 Defense proved, 3 Mailing not proved, 1 Requests not compliant, 2 Triable issue)2020, Appellate Term: 29 decisions (25 Defense proved, 2 Mailing not proved, 2 Requests not compliant)2019, Appellate Term: 67 decisions (51 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 13 Requests not compliant, 1 Triable issue)2018, Appellate Term: 52 decisions (43 Defense proved, 3 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant)2017, Appellate Term: 85 decisions (52 Defense proved, 14 Mailing not proved, 6 Nonappearance not proved, 10 Requests not compliant, 1 Triable issue, 2 No-show excused)2016, Appellate Term: 73 decisions (34 Defense proved, 13 Mailing not proved, 22 Nonappearance not proved, 3 Requests not compliant, 1 Triable issue)2015, Appellate Term: 77 decisions (48 Defense proved, 6 Mailing not proved, 14 Nonappearance not proved, 5 Requests not compliant, 4 Triable issue)2014, Appellate Term: 46 decisions (35 Defense proved, 5 Mailing not proved, 4 Nonappearance not proved, 2 Requests not compliant)2013, Appellate Term: 43 decisions (28 Defense proved, 6 Mailing not proved, 7 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Appellate Term: 51 decisions (37 Defense proved, 5 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant, 2 Triable issue, 1 No-show excused)2011, Appellate Term: 33 decisions (27 Defense proved, 3 Mailing not proved, 2 Nonappearance not proved, 1 Triable issue)2010, Appellate Term: 14 decisions (9 Defense proved, 1 Mailing not proved, 2 Nonappearance not proved, 2 Requests not compliant)2009, Appellate Term: 15 decisions (6 Defense proved, 6 Mailing not proved, 2 Nonappearance not proved, 1 Requests not compliant)2008, Appellate Term: 7 decisions (2 Defense proved, 1 Mailing not proved, 4 Nonappearance not proved)2007, Appellate Term: 13 decisions (1 Defense proved, 6 Mailing not proved, 5 Nonappearance not proved, 1 Triable issue)2006, Appellate Term: 17 decisions (1 Defense proved, 7 Mailing not proved, 5 Requests not compliant, 4 Triable issue)2005, Appellate Term: 20 decisions (3 Defense proved, 10 Mailing not proved, 6 Requests not compliant, 1 No-show excused)2004, Appellate Term: 15 decisions (3 Defense proved, 1 Mailing not proved, 10 Requests not compliant, 1 Triable issue)2024, Appellate Term: 6 decisions (6 Defense proved)2025, Appellate Term: 7 decisions (7 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2003, Appellate Term: 1 decision (1 Requests not compliant)2023, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 2 Triable issue)2022, Trial courts: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2021, Trial courts: 10 decisions (8 Defense proved, 2 Requests not compliant)2020, Trial courts: 3 decisions (2 Mailing not proved, 1 Requests not compliant)2019, Trial courts: 5 decisions (3 Mailing not proved, 2 Requests not compliant)2018, Trial courts: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2017, Trial courts: 6 decisions (2 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 Triable issue)2016, Trial courts: 4 decisions (3 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 1 Triable issue, 1 No-show excused)2013, Trial courts: 6 decisions (3 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Trial courts: 5 decisions (2 Defense proved, 3 Requests not compliant)2010, Trial courts: 3 decisions (2 Defense proved, 1 Requests not compliant)2009, Trial courts: 2 decisions (2 Defense proved)2008, Trial courts: 4 decisions (2 Defense proved, 2 Requests not compliant)2007, Trial courts: 1 decision (1 Mailing not proved)2006, Trial courts: 2 decisions (2 Mailing not proved)2005, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2004, Trial courts: 7 decisions (1 Defense proved, 2 Mailing not proved, 4 Requests not compliant)2024, Trial courts: 2 decisions (1 Mailing not proved, 1 Requests not compliant)2025, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2026, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2011, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
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, 79 (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.
  • First Help Acupuncture, P.C. v Progressive Northeastern Ins. Co. (2007 NY Slip Op 51167(U)) FollowedThe insurer raised causation and assignment issues on some claims but failed to support its IME nonappearance defense.

Cited by

  • Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co. (2008 NY Slip Op 51761(U))The insurer proved two claims medically unnecessary but failed to establish the assignor's EUO nonappearance on the remaining claim.

Similar decisions

  • Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50844(U))The insurer established timely and proper mailing of IME notices and the assignor's nonappearance, without a triable rebuttal.
  • Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50954(U))An IME nonappearance defense is subject to preclusion if the insurer's denials are untimely.
  • Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50931(U))The insurer established timely mailing of IME notices and denials and the assignor's failure to attend the scheduled examinations.
  • Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51677(U))The insurer established proper mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue.
  • 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.
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