Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.; op 22 Misc 3d 723), dated November 5, 2008.
Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
Decided on January 10, 2011
PRESENT: GOLIA, J.P., PESCE and STEINHARDT, JJ
The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits for psychological services rendered to its assignors, defendant moved for summary judgment dismissing the complaint based upon, among other things, the failure of plaintiff's assignors to attend independent medical examinations (IMEs) by a psychologist, which were scheduled by Hudson Valley Medical Consultants (HVMC). The Civil Court granted defendant's motion, and this appeal by plaintiff ensued.
It is uncontested that defendant established that the IME requests
were timely mailed in accordance with HVMC's standard office practices
and procedures and that the assignors failed to appear for the IMEs
(see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50
AD3d 1123 ; Stephen Fogel Psychological, P.C. v Progressive Cas.
Ins. Co., 35 AD3d 720 ; Residential Holding Corp. v Scottsdale
Ins. Co., 286 AD2d 679 ; Delta Diagnostic Radiology, P.C. v
Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).
However, plaintiff contends that defendant's insurance policy, which incorporates the
language of the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), requires
that IMEs of eligible injured persons (EIPs) be conducted only by
physicians, to the exclusion of other healthcare providers, even when
the health services for which first-party no-fault benefits are sought
were provided by non-physicians. In rejecting plaintiff's
contention, the Civil Court relied on an opinion letter of the State
Insurance Department, dated March 12, 2004 (see 2004 Ops Ins Dept No.
04-03-10). We find that the Insurance Department Regulations (11 NYCRR
part 65), read as a whole, in accordance with the rules of
construction, and the State Insurance Department's opinion letter, to
which we accord great deference, lead to the conclusion that the
requirement that an EIP submit to medical examinations, as set forth
in the mandatory personal injury protection endorsement (Insurance
Department Regulations [11 NYCRR] § 65-1.1), should not be limited
strictly to examinations by physicians. Thus, in the instant matter,
we find that the psychologist retained by defendant could properly
have conducted the IMEs of plaintiff's assignors, who had received
psychological treatment (see generally Stephen Fogel Psychological,
P.C., 35 AD3d at 722; Meridian Acupuncture Care v Geico Ins. Co., 31
AD3d 509 ). A contrary conclusion would frustrate the core
objective of the no-fault scheme by limiting the universe of
healthcare providers who can perform IMEs to physicians, thereby
delaying the processing of no-fault claims (see also Stephen Fogel
Psychological, P.C., 35 AD3d at 722). Therefore, we find that
defendant properly denied plaintiff's claims based on its assignors'
failure to satisfy a condition precedent to coverage.
Accordingly, the Civil Court's order granting defendant's motion for summary judgment dismissing the complaint is affirmed.
Golia, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: January ...