Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 50954(U)(App. Term 2d Dept. 2014)
“A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff’s claims after plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant’s contention, such a defense is subject to preclusion if defendant’s denial of claim forms were untimely (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).”
There are two cases from 2014 from the Appellate Division that state a timely disclaimer is a part of an insurance carriers prima facie case on an EUO/IME no-show matter. Why does this Court insist on citing the 2009 Westchester/Lincoln case. Much has happened in five years. And the Court in IDS left open the timliness argument by not reaching it. Perhaps, this Court could reach it as Westchester/Lincoln has been called into question. I don’t understand this Court sometimes.
One Response
why cite to any new case law when they but see Unitin. that is an acknowlegment by the court that there is a split among the departments.
I agree though that the ATIC case is a crappy cite bc o the unsworn denial contradicts sworn testimony, unless of court the denial was offered for the truth of its content:)
bitches just issue a timely denial
how hard is it