Substitute IME’s – I need your help
Attorney Jason Tenenbaum questions whether insurance carriers should be allowed to substitute IME doctors at trial, seeking input on courts permitting this practice.
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March 2016 Articles
25 articles published in March 2016
Triable issue of fact as to medical necessity
Court finds triable issue of fact on medical necessity when plaintiff's medical affidavit specified assignor's conditions and described benefits of disputed medical supplies.
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Affidavit issues once again invade Hertz’ motion practice
Hertz loses motion due to defective affidavits lacking personal knowledge of IME no-shows, highlighting critical evidentiary requirements in no-fault cases.
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The acupuncture was medically necessary and then some
Court finds acupuncture medically necessary despite IME denial in Friedman v Allstate, precluding workers' comp defense not raised in original denial.
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Do you really believe verification was complied with?
Court finds employee affidavit sufficient to create presumption that verification was mailed and received by defendant insurer, establishing triable issue of fact.
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What is it that these law firm affidavits are missing?
Court dismisses insurance company's motion due to flawed affidavit lacking personal knowledge of EUO non-appearance, highlighting common procedural errors in no-fault cases.
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The conclusory affidavit?
Court rules insurance company failed to prove IME no-show due to deficient affidavits lacking personal knowledge, highlighting importance of proper documentation.
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EUO defense not sustained
Court ruling on EUO defense failure when law firm partner's affirmation lacked personal knowledge of plaintiff's nonappearance at examinations under oath
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Suit on a workers compensation policy dismissed on lack of coverage grounds
New York court dismisses workers compensation policy suit, ruling insurer can raise lack of coverage defense regardless of claim denial timing or propriety.
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Motion to dismiss complaint reversed – the interest clock continues
Court reverses motion to dismiss in no-fault insurance case, ruling interest clock continues despite pleading deficiencies when opposition provides sufficient information.
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Tolling for an IME or EUO
Court ruling clarifies that insurance carriers must submit IME scheduling letters to toll the 30-day payment period in NY no-fault cases - key practice tip.
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Another proof of the no show
Court ruling highlights evidentiary standards for proving patient no-shows at IMEs, questioning the temporal limits and procedural requirements for valid affidavits.
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Timely EUO viz GCL 25-a
Court decisions on EUO timing requirements under GCL 25-a when 10th day falls on Sunday, including analysis of follow-up request strategies.
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Lack of coverage sustained
Court affirms that insurance company employee affidavit successfully demonstrated no policy coverage existed for vehicle on accident date, establishing valid defense.
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Allstate letters not timely or properly mailed.
Court rules Allstate failed to prove proper mailing of EUO scheduling letters, highlighting critical procedural requirements in no-fault insurance disputes.
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Maya cannot prove anything is mailed
Maya Insurance Co. loses three no-fault cases due to claims adjuster's contradictory testimony about mailing denial forms before her employment start date.
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Medical necessity not sustained
Court reverses order after plaintiff's affidavit failed to meaningfully rebut defendant's peer review report showing lack of medical necessity for treatment.
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Examination Under Oath – objections waived
Court rules that plaintiffs who fail to respond to EUO requests cannot later object to defective scheduling letters, waiving their right to challenge procedural defects.
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Written proof of loss is when it is mailed
Court rules that mailing written proof of loss satisfies 30-day notice requirement under NY no-fault insurance regulations, even if insurer receives it later.
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Material misrepresentation?
NY Court of Appeals ruling on material misrepresentation standards for no-fault insurance policy procurement fraud defense in Renelique v National Liability case.
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CPLR 3404 does not apply
Court ruling highlights how NYC Civil Court's Uniform Rules require stricter standards than CPLR 3404 when restoring stricken cases to calendar.
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An appeal for the sake of an appeal?
New York appellate court reverses summary judgment in no-fault insurance case due to missing affidavit, raising questions about the necessity of the appeal.
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Judicial notice of the Supreme Court file
New York Appellate Term explores judicial notice boundaries in res judicata case, examining when courts "may" take notice of Supreme Court records without party request.
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An article 75 that went nowhere
Article 75 case where acupuncture provider's arbitration award was vacated due to policy limits being exceeded, resulting in unsuccessful court challenge.
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Appellate Division opines on lack of medical necessity defense
Appellate Division rules on medical necessity defense requirements, establishing standards for rebutting IME reports in no-fault insurance cases.
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