No-Show. Was it timely?

Acupuncture Solutions, P.C. v Lumbermans Mut. Cas. Co., 2015 NY Slip Op 50346(U)(App. Term 1st Dept. 2015)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear”

So here is the question.  Did the “timely and properly mail[ing] [of] the notices” include gearing the mailings to the receipt of Plaintiff’s bill?

I think the answer is no, as the basic construct of a first department no-show motion would not call for same.  But I need to read the record before I can give an answer.

IME no-show viz Solorzano and Lucas

Sunrise Acupuncture, P.C. v Encompass Auto & Home Ins. Co., 2014 NY Slip Op 51082(U)(App. Term 1st Dept. 2014)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). With respect to the appearance issue, defendant presented competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of the defendant’s third-party biller attesting to the affiants’ “personal knowledge of the office procedures when a[n] [assignor] failed to appear for a medical exam” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424).”

Nothing new here to report.  I would only stress that the timeliness issue relates to the letters; not the letters as they relate to the bills.  I know certain plaintiff attorneys and defendants on no-show DJ’s seem to believe otherwise.

IME no-show upheld based upon DJ case law **correction**

Stracar Med. Servs. v New York Cent. Mut. Ins. Co., 2014 NY Slip Op 50263(U)(App. Term 1st Dept. 2014) (sorry – this was a first department case – perhaps it was wishful thinking that the judges at 141 Livingston Street would follow this)

Not only were the ATIC declaratory judgment actions that were filed en masse from 2011-2013 potent, but they created great case law.  Now, I am proud to say that the case law I created has now found its way into Appellate Term orders in Civil Court cases, where most non-arbitrated no-fault matters call home.

“Defendant-insurer demonstrated its entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting the affidavit of its no-fault litigation examiner demonstrating that the notices scheduling the assignor’s independent medical examinations (IMEs) were timely and properly mailed, as well as the sworn affidavits of the scheduled examining physician and her employee that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424 [2013]; see Unitrin at 560).”

Medical provider needs to prove that Assignor was represented by counsel and that counsel failed to receive notification of IME

American Tr. Ins. Co. v Leon, 2013 NY Slip Op 08124 (1st Dept. 2013)

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.

“Order, Supreme Court, New York County (Ellen M. Coin, J.), entered March 26, 2013, which denied plaintiff’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff insurance company has no obligation to pay defendant Stand-Up MRI’s claims.

Plaintiff demonstrated its entitlement to judgment as a matter of law by submitting competent evidence that it mailed the notices scheduling the injured defendant’s independent medical examinations (IMEs) and that he failed to appear for the examinations (see American Transit Ins. Co. v. Lucas, __ AD3d __, 2013 NY Slip Op 07273 [1st Dept 2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Defendant provider’s contention that plaintiff failed to prove the mailing of IME notices to the assignor’s attorney, absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim, is unavailing (see Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins., 31 Misc 3d 128[A], 2011 N.Y. Slip Op. 50473[U] [App Term 1st Dept 2011]).

Attendance at a medical examination is a condition of coverage. Accordingly, there is no[*2]requirement that the claim denial be timely made (see American Transit Ins. Co. v. Lucas, __ AD3d __, 2013 NY Slip Op 07273; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2012]).”

By the way, this case now effectively overrules Infinity Health Prods., Ltd. v Redland Ins. Co., 2013 NY Slip Op 50751(U)(App. Term 2d Dept. 2013)(“ Furthermore, there is nothing in the record to suggest that plaintiff’s assignor was represented by the attorney to whom the IME scheduling letters were also sent. Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled.”)

Failure to attend IMEs voids coverage – with citation to Court of Appeals precedent

American Transit Ins. Co. v. Lucas, 2013 NY Slip Op 07273 (1st Dept. 2013)

Decided on November 7, 2013
Mazzarelli, J.P., Acosta, Saxe, Richter, Feinman, JJ. 10975-

152409/12 10976 152413/12

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Sam Lewis
of counsel), for respondent.

Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff’s motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.

The failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2012]). Accordingly, when defendants’ assignors failed to appear for the requested medical exams, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8[c]; Unitrin, 82 AD3d at 560). [*2]

” [A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption'” (Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

Plaintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam (cf. First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co., 9 Misc 3d 1127[A], *3 [Civ Ct, Kings County 2005], affd 14 Misc 3d 142[A] [App Term, 2d Dept 2007]).

There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 [2011]; Unitrin Advantage Ins. Co., 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 7, 2013

CLERK

MVAIC again fails in its quest to prove the mailing of IME letters

Acupuncture Approach PC v MVAIC, 2013 NY Slip Op 51676(U)(App. Term 1st Dept 2013)

“defendant’s moving submission heavily relied on an affidavit submitted by an employee of the entity retained by defendant to schedule the IMEs in this matter. The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her office’s mailing practices and procedures. Thus, defendant “failed to establish that the practice and procedure was designed to ensure that the [notices] were addressed to the proper party and properly mailed” (Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; cf. Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]).”

What is missing from MVAIC’s affidavits? Did the affiant work at the entity when the letter was mailed?  Is there some procedure in place that vendor is supposed to follow?  Are the letters as a matter of practice mailed on the day of the letter or next business date?  This is the 3rd time we saw this from this Court and this defendant.

Amended motion/Admissible Reply papers/Defects in affidavits/delay letter vs. verification requests

Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 51266(U)(App. Term 2d Dept. 2013)

“Plaintiff opposed defendant’s motion, arguing that the IME doctor’s affidavit, which defendant had submitted in support of its IME nonappearance defense, was incomplete and unsigned, and cross-moved for summary judgment. Subsequently, defendant served what it denominated an amended motion for summary judgment, which included the IME doctor’s complete affidavit. Plaintiff submitted opposition thereto. The Civil Court deemed defendant’s amended motion to be its reply papers. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issues to be determined at trial were “proper notice of the IME, medical necessity and fee schedule.”

…

“In our opinion, the Civil Court properly considered defendant’s amended motion to be a reply since the substance of defendant’s papers was unchanged and the papers merely corrected a technical defect in the affidavit of defendant’s IME doctor (see CPLR 2001). Furthermore, plaintiff submitted a response to defendant’s reply papers (see Zernitsky v Shurka, 94 AD3d 875 [2012]; Hoffman v Kessler, 28 AD3d 718 [2006]).”

…

“[t]here was a discrepancy in the recitation by the IME doctor of the address at which the assignor was to have been examined.” (typographical error)

“A review of defendant’s letters to plaintiff reveals that the letters merely notified plaintiff that defendant was delaying consideration of the claims pending investigation into the motor vehicle accident at issue. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny those claims ” (A delay must ask for something)

“Contrary to the implicit determination of the Civil Court, the record shows that plaintiff did not establish its prima facie case ”

This case starts with some procedural history.  It then states that IME affidavits are not probative based upon inconsistencies and then it ends with a statement that a “delay letter” is insufficient to toll the period to pay or deny a claim.   Finally, the affidavit was insufficient to establish a business record foundation (CPLR 4518[a])

The affidavits were unshakable

American Transit Ins. Co. v. Casas Sosa, 2013 NY Slip Op 31588(u)(Singh, J)*My Case*

Plaintiff moved for leave to enter a default against the non-answering Defendants and for summary judgment against the answering Defendant.  Appearing Defendant argued that the affidavits were insufficient.  The Court shot down each of these arguments.

“Defendant, Yager, argues that Plaintiff has failed to provide proof in admissible form sufficient to eliminate all material issues of fact. Yager opines that the ”’affidavit’ of Ms. Hershman is defective and cannot serve to establish that a notice for physical examination was “mailed” because there is no recitation that the statements are made under penalty of perjury.”

“Defendant contends that, because the affirmation of Dr. Winell is undated, it is unclear that it  was executed after the dates of the scheduled physical examinations. Defendant argues that,  because Dr. Winell identified an office procedure and referred to his records and notes, his documentation and his written correspondence to Plaintiff should be in evidence and that without  these documents Plaintiff cannot establish that there are no material issues of fact and the motion should be denied.”

“Defendant’s arguments are without merit. CPLR § 2309(b) provides that “An oath or  affirmation shall be administered in a form calculated to awaken the conscience and impress the  mind of the person taking it in accordance with his religious or ethical beliefs.  “There is no  specific form of oath required in this State” Collins v. AA Trucking Renting Corp., 209 A.D.2d  363 (1 st Dep’t 1994).”

“Ms. Hershman’s affidavit states that she was “duly sworn” and is notarized, with the  notary reciting that the affidavit was “sworn to before me this 23rd day of October, 2012.” As  such, her affidavit meets the requirement that an oath or affirmation be administered in a form  calculated to awaken the conscience, and this Court takes notice of her affidavit.”

“As to the argument that it is unclear as to when Dr. Winell’s affidavit was executed  relative to the scheduled dates of the physical examinations, this argument is unavailing. It is  clear from the use of the past tense in the affidavit that it was executed after the dates of the  scheduled examinations.”

“Regarding the argument that Dr. Winell is relying upon his office procedures, notes mid  records and that these should therefore be produced, this argument is without merit. Dr. Winell  clearly states that his affirmation is based upon personal knowledge. ”

“Yager further contends that Plaintiff did not properly provide Sosa’s attorney with notice  of the physical examinations. However, there is no evidence that Sosa had an attorney at the  time the notices were sent.”  Note the court here places burden on medical provider/ EIP to raise an issue of fact regarding existence of attorney.”

“In conclusion, Plaintiff has provided evidence in admissible form sufficient to eliminate  any question of fact. Plaintiff has shown that Mr. Sosa failed to appear for properly scheduled  medical examinations, a condition president to payment of no-fault benefits to him or his assigns.  Therefore, summary judgment is warranted. Plaintiff has further shown that the summons, complaint, and the present mot on were served upon each of the defendants.”

Assignor did not show up to his IME and EUO – double whammy

Unitrin has created this vacuum where the failure to control ones Assignor has spelled unabated doom to many a medical clinic.  Imagine having this conversation during that crazy period when the law was “the failure to attend an IME rebuts the presumption of medical necessity?” and the App. Term 1st Dept did everything in the power to avoid ruling on the merits of these cases?

(The commentator Captain America would probably think that it is unconstitutional to demand an innocent Assignor to be deposed and examined in accordance with the insurance policy upon which she is either the NI or the third-party beneficiary)

Dowd v Praetorian Ins. Co., 2012 NY Slip Op 51160(U)(App. Term 1st Dept. 2012)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) and examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).”

IME no show results in summary dismissal

Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51677(U)(App. Term 1st Dept. 2011).

“defendant’s submissions established prima facie that it properly mailed initial and follow-up notices of independent medical examinations (IMEs) to the assignor and her attorney, and that the assignor failed to appear”

I would not read too much into the bolded language.  I believe there is case law out there that only requires it to be mailed to the assignor.  Still, this opens a door (perhaps) for the eventual argument that you know will be made.