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The failure to specifically deny the lack of appearence at an IMEs proves fatalMay 16, 2012

Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50844(U)(App. Term 1st Dept. 2012)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto (see Unitrin at 560).”

One Response

  1. mitchell s. lustig says:

    Interstingly, the Court, citing Unitrin, stated that the IME notices were “timely and properly mailed.” Although the decision of the Appellate Divsion, First Department in Unitrin specifrically noted that the insurer’s IME notices were timely mailed in accordance with the verification protocols, this aspect of the Unitrin decision is often overlooked. Too often, Unitrin has been interpreted to mean that not only does the insurer not have to issue a timely denial but that the scheduling of the IME or EUO does not have to be in accordance with the verification regulations.

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