An IME no show case

Infinity Health Prods., Ltd. v Redland Ins. Co., 2013 NY Slip Op 50751(U)(App. Term 2d Dept. 2013)

“On appeal, defendant’s sole argument is that it raised a triable issue of fact and made a prima facie showing of entitlement to summary judgment by submitting sufficient proof that it had properly mailed the IME scheduling letters and that plaintiff’s assignor had failed to appear. Regarding the address to which the IME scheduling letters were mailed, defendant alleges that [*2]“[t]he IME scheduling notices were mailed to the assignor’s attorney and copied to the assignor at the address (including zip code) that the assignor provided.” However, a review of the file reveals that plaintiff’s assignor’s zip code was listed as 10469 on both plaintiff’s claim form and the assignment of benefits submitted by plaintiff to the court in support of its motion for summary judgment, while the IME scheduling letters and the postmarked mailing logs submitted by defendant list the zip code as 10468. Only proof of proper mailing gives rise to a presumption of receipt (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). 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 (cf. Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2006]).”

Investigation reveals that the NF-2, which listed the zipcode 10469, was not included in the motion papers.  It seems that because of this, the court then held that Defendant failed to present any evidence that the letters were sent to the PI attorney.  Note that the App. Term First Department places the burden on the Medical provider to prove that the letters were not sent to the PI attorney or that there was a PI attorney that should have received the IME letters.