Preferred Ortho Prods., Inc. v 21st Century Ins. Co., 2019 NY Slip Op 50224(U)(App. Term 2d Dept. 2019)
” Plaintiff’s sole appellate contention with respect to defendant’s motion, “that the address used on the IME scheduling letters improperly included an apartment number that does not appear on plaintiff’s claim forms, will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 ; Gulf Ins. Co. v Kanen, 13 AD3d 579 ; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015])” (Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51523[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). “
It is nice to have one of the former administrative judges of Civil Court, Queens County when no-fault causes ruled that Court’s docket sit on the Appellate Term, Second Department. Having argued Market Street v. Global Liberty with that judge on the panel, you can tell that the Court finally has someone on it who understands the reality of this practice. It is no irony that certain decisions are leaning a certain away this year,
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”
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 ; 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.
Valdan Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 50739(U)(App. Term 2d Dept. 2018)
Oh its’s real. “Three of the claims at issue in this case, seeking the sums of $1,062.11, $1,420.16 and $1,420.16, respectively, were denied on grounds other than plaintiff’s assignor’s failure to appear for IMEs. Consequently, as plaintiff argues, defendant did not preserve its IME no-show defense as to those claims and, thus, it is not entitled to summary judgment dismissing those claims on that ground ”
Shout out to former no-fault attorney Irena Golodkeyer on her brief. Rumor tells me that she has found greener pastures in the world.
Global Liberty Ins. Co. v New Century Acupuncture, P.C., 2018 NY Slip Op 03444 (1st Dept. 2018)
“Plaintiff sent an initial IME scheduling letter, and a re-scheduling letter, to both Davis and her attorney. After Davis failed to appear for the re-scheduled IME, plaintiff sent a third letter to the attorney, which indicated on its face that a copy had been sent to Davis. However, it is undisputed that the letter to Davis was sent to the wrong address. Thus, there was no reason for the attorney to know that Davis had not received notice of the re-scheduled IME and to tell her of the new IME date and location. Under these circumstances, the motion court properly found that plaintiff failed to demonstrate that it provided adequate notice, reasonably calculated to apprise Davis that her appearance at an IME at a specified date and location was required”
Thomas J. Tesi, M.S., D.C., P.C. v Hereford Ins. Co., 2018 NY Slip Op 50252(U)(App. Term 2d Dept. 2018)
“However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 [d]).
Defendant’s remaining contentions lack merit.”
I sense the lack merit is the 65-3.5(p) argument this law firm usually makes. This argument in First Department parlance is unavailing or, in Second Department parlance, lacks merit. This is why.
Regulations are read like statues. See the following:
(1) “The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction. (Statute Sec. 94)
(2) “A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment, and that construction is to be preferred which furthers the object, spirit and purpose of the statute.” (Statute Sec 96)
(3) “A statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent *Stat. Law § 97 )
If 3.5(d) states that the carrier has 30-days to schedule the IME and 3.5(p) says “an insurer’s non-substantive technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame, shall not negate an applicant’s obligation to comply with the request or notice”, how can you harmonize the two?
The first regulation is on point. The second regulation discuses non-substantive defects or omissions and the failure to to comply with geberal time frames not negating the obligation to comply with a notice.
The two regulations are at complete odds with each other, if read literally.
3.5(p) would literally destroy every verification time frame and be at odds with the 30-day pay or deny rule. I cite to statute 145: “A construction which would make a statute absurd will be rejected.”
Under Statutes 94, 96 ,97, and 145, 11 NYCRR 65-3,5 (p) would have to yield to the regulations that are on point (11 NYCRR 5- 3.5[b][f]; 3.6[b]; 3.8).
This is why the line of reasoning I see from this firm as probably incorrect.
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 ). 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 ). 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,
Kolodziejski v Jaskolka, 2017 NY Slip Op 07851
“While there is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it” (Rinaldi v Evenflo Co., Inc., 62 AD3d 856, 856 [2d Dept 2009]). Here, the examining physician was able to reach a definitive conclusion as a result of the initial independent medical examination, and she never indicated that her analysis and/or conclusion were affected by plaintiff’s alleged refusal to perform certain tests. The court therefore properly declined to compel plaintiff to undergo a second independent medical examination “
Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co., 2017 NY Slip Op 51461(U)(App. Term 2d Dept. 2017)
“Contrary to defendant’s argument, the Civil Court properly granted the branches of plaintiff’s motion seeking summary judgment on the first two causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that the first independent medical examination had not been scheduled to be held within 30 days of defendant’s receipt of the claims underlying those causes of action, as required by 11 NYCRR 65-3.5 (d) (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see also O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”
This is settled law, not necessarily blog worthy. But, this is a holding that the Appellate Division, First Department and this Court share. Why not cite the 2 cases from the Appellate Division on this topic? Precedent from the Appellate Division, First Department, if not contradictory to precedent from the Appellate Division, Second Department is more binding on the Appellate Term, Second Department than that Court’s own holdings.
K.O. Med., P.C. v Mercury Cas. Co., 2017 NY Slip Op 51158(U)(App. Term 2d Dept. 2017)
I reviewed the papers. The IME vendor changed the affidavit that was sent and inter-changed the defunct “Crosslands” with “Examworks” (the successor) entity. There was no discussion regarding the jural relationship between the two entities. I only realized that when I reviewed the papers after receiving the decision. Ironically, I was not the only one to miss that salient point. The Appellate Time signed an OSC granting us a stay of trial and granted the application motion to stay. Neither of these are easy feats. More finely tuned eyes saw the mistake. I will say this: they have a good set of proof-readers at that court. They find things all the time I never find.
“The Civil Court properly denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims that had been denied based upon plaintiff’s assignor’s failure to appear for the IMEs, as the proof submitted by defendant was not sufficient to give rise to a presumption that the IME scheduling letters at issue had been properly mailed”