IME NO SHOW – DEFECTIVE CARRIER’S AFFIDAVIT

IME NO SHOW – DEFECTIVE CARRIER’S AFFIDAVIT

Alleviation Medical Services, P.C. v. Farmers New Century Insurance Co., Slip Copy, 2016 WL 1189935 (Table), 2016 N.Y. Slip Op. 50379(U).  Although insurer proved timely mailing, the Court nevertheless ruled that it could not use the No Show defense:

However, with respect to the first cause of action, plaintiff established submission of the claim form, and the affidavit of defendant’s no-fault claims adjuster states that the claim at issue was not denied within 30 days of its receipt (see 11 NYCRR 65-3.8 [a] [1]). As a result, the record establishes plaintiff’s prima facie case upon its first cause of action (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]). Since defendant did not demonstrate that the 30-day claim determination period (see 11 NYCRR 65-3.8) had been tolled for this claim, defendant is precluded from asserting, with respect to this claim, its proffered defense that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Consequently, plaintiff is entitled to summary judgment upon its first cause of action.

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