Timely denials necessary and a citation to Westchester/Lincoln

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.