For the All on NY fans: you were wrong.May 4, 2018

Hereford Ins. Co. v Lida’s Med. Supply, Inc., 2018 NY Slip Op 03226 (1st Dept. 2018)

(1) “While plaintiff’s notice of motion did not specify that it was solely moving for summary judgment on its first cause of action, its attorney’s affirmation shows that they were limiting the relief sought to this claim.” (if this is a volume business a pro-forma motion, then why not have a software system that indicates this)

(2) “When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it “constitutes a breach of a condition precedent vitiating coverage””

(3) “Here, plaintiff established its entitlement to judgment as a matter of law by submitting the letters sent to each claimant notifying them about the date, time, and location of the initially scheduled IME and a second scheduled IME and affidavits of service for these letters. Plaintiff also submitted affidavits from each medical professional assigned to conduct the scheduled IME, with each stating that the medical professional was in his or her office at the date and time of the scheduled IME, the respective claimant failed to appear, the appointment was kept open until the end of the day, and at the end of the day, the medical professional filled out the affidavit acknowledging the nonappearance.”

(4)”Because Hereford sent the notices scheduling the IMEs prior to the receipt of each of the claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply (see Mapfre at 469). Furthermore, plaintiff was not required “to demonstrate [*2]that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-25 [1st Dept 2013]]).”

Two things to take from this.

First, the All of NY case was limited to a provider EUO no show DJ predicated upon a record missing demonstrative evidence.  In contrast,  this was the boilerplate IME no-show DJ.  The result makes sense and is consistent with prior precedent.

Second, I think the proof of the no-show here is a lot less than the line of cases that the Appellate Term, First Department created.  But this would make sense when you look at how these panel judges when all of them sat in no-fault land (Civil and Supreme Court DJ parts).


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