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IME no-shows sustainedOctober 26, 2019

Valdan Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 2019 NY Slip Op 51705(U)(App. Term 2d Dept. 2019)

” Defendant established that initial and follow-up letters scheduling IMEs had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claim seeking to recover the sum of $1,224.22 had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to the branch of defendant’s cross motion seeking summary judgment dismissing, on the ground that plaintiff’s assignor had failed to appear for duly scheduled IME “

Tyorkin v Global Liberty Ins., 2019 NY Slip Op 51689(U)(App. Term 2d Dept. 2019)

“[d]efendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (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 duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to [*2]coverage (id. at 722). As defendant’s cross motion further established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground…”

Compare to: Satya Drug Corp. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51505(U)(App. Term 1st Dept. 2019)

It should be noted that the Appellate Division, First Department as I have seen does not follow the “Metro 8” contemporaneous rule. Thus, while I am biased here, the Second Department got it right.

Lidas Med. Supply, Inc. v Global Liberty Ins., 2019 NY Slip Op 51688(U)(App. Term 2d Dept. 2019)

” The record demonstrates conclusively that while the address to which defendant mailed the letters did not include an apartment number, the address matched the one provided by plaintiff’s assignor on the assignor’s sworn application for no-fault benefits (NF-2) and on the assignor’s sworn notice of intention to make claim form which was submitted to defendant. Consequently, defendant established that the address to which the IME scheduling letters were mailed was proper”

We have seen recent cases where the Appellate Term, Second Department has followed the Appellate Division First Department rule requiring the provider to show the address is wrong in the first instance. The safer route is always to provide corroboration of the address and the attorney rep. letter. The IME letters should always have the name and address of the EIP and the attorney on all letters.

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