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Non contact case on motion June 3, 2018

Compas Med., P.C. v United Servs. Auto. Assn., 2018 NY Slip Op 50764(U)(App. Term 2d Dept. 2018)

“In support of its motion, defendant proffered an affidavit by its insured, who averred that she had not struck anyone with her vehicle. The insured’s passenger also submitted an affidavit, in which she stated that the insured vehicle had not come into contact with a pedestrian. The affidavits were sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. [*2]Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). “

What happened to those EUO letters? What happened to the IME letters? Where are those denials? June 3, 2018

Parisien v Maya Assur. Co., 2018 NY Slip Op 50771(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling examinations under oath (EUOs) had been properly addressed and mailed”

Parisien v Maya Assur. Co., 2018 NY Slip Op 50766(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed ”

Big Apple Ortho Prods., Inc. v Allstate Ins. Co., 2018 NY Slip Op 50775(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed ”

Mind & Body Acupuncture, P.C. v Allstate Ins. Co., 2018 NY Slip Op 50779(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed””

Remedial Med. Care, P.C. v Park Ins. Co., 2018 NY Slip Op 50769(U)(App. Term 2d Dept. 2018)

“With respect to the remaining bills, plaintiff correctly argues that defendant failed to establish that the initial and follow-up letters scheduling independent medical examinations (IMEs) had been timely mailed”

Where was the partner? June 3, 2018

Active Care Med. Supply Corp. v Metlife Auto & Home, 2018 NY Slip Op 50772(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that defendant failed to submit proof by someone with personal knowledge of plaintiff’s assignor’s nonappearance at an initial and follow-up EUO “

IME no-show unsuccessful June 3, 2018

Pierre J. Renelique, M.D., P.C. v Park Ins. Co., 2018 NY Slip Op 50780(U)(App. Term 2d Dept. 2018)

“Defendant’s moving papers stated that the IME scheduling letters were sent to plaintiff’s assignor at “2497 Grant Avenue, Basement, Bronx, NY 10468,” but the NF-3 form submitted by plaintiff indicated that the assignor’s address was “2307 Morris Ave, #2C, Bronx NY 10453.” A presumption of receipt arises only where there is proof of a proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2013]). To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant’s moving papers failed to demonstrate that the IMEs had been properly scheduled”

Clearly, the carrier was relying on the mailing of the IME letters to the attorney to make up for incorrect mailing of the letters to the Assignor.  The carrier failed (it appears) to place the LOR in the moving papers.  But even assuming this was done, was the attorney for Assignor lulled into believing that the letters were mailed to the correct address?  See Global v.  New Century Acupuncture, P.C.?  The only way not to be lulled is foe the letter to the attorney to include the address of the Assignor on the “cc:” part of the letter.

Neptune EUO scheduling rule on display again June 3, 2018

Healthway Med. Care, P.C. v American Commerce Ins. Co., 2018 NY Slip Op 50733(U)(App. Term 2d Dept. 2018)

“However, plaintiff correctly argues on appeal that defendant failed to demonstrate that it [*2]was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims”

No matter how many times you try to appeal the same issue of law, the same result happens.  Yet, under First Department precedent (Unitrin v. All of NY), the failure to mail the EUO letter within 15-calendar days of receipt of the bill is fatal.