IME no show disclaimer substantiatedDecember 26, 2017

Longevity Med. Supply, Inc. v Citiwide Auto Leasing, 2017 NY Slip Op 51880(U)(App. Term 2d Dept. 2017)

“In support of its motion, defendant established that, before it had received the claim at issue, it had mailed letters scheduling an initial and follow-up IME (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant further demonstrated that, upon receipt of the claim at issue, it had timely mailed initial and follow-up requests for written [*2]verification (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Finally, defendant established that, upon receiving the requested verification, it had timely denied the claim at issue based upon the assignor’s failure to appear for IMEs (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Plaintiff failed to raise a triable issue of fact in opposition.”

This is the famous fact pattern.  Bill is delayed for delayed for verification.  The IME is timely scheduled and there is a double no-show.  Eventual denial comes when the verification is received.  Plaintiff argues that the denial is late because the disclaimer should have been issued when grounds to disclaim existed.  The carrier argues that the bill is tolled until verification is received.  Again, the court held that  a disclaimer is timely when it is issued following receipt of late verification notwithstanding the grounds existing prior,


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