Wednesday, October 1, 2008

The Consequence of Not Proving a Negative

Post Traumatic Med. Care, P.C. a/a/o Ahissa Smith & Tameeka Nunn v. Progressive Cas. Ins. Co.
(App. Term, 2nd Dept., decided 9/29/2008)

Progressive denied payment of plaintiff medical provider's bills based on the assignors' failure to attend scheduled IMEs. Plaintiff sued in Kings Civil and unsuccessfully moved for summary judgment.

In REVERSING the lower court's denial of summary judgment to plaintiff, the Appellate Term held:
On appeal, plaintiff contends, inter alia, that defendant failed to create a triable issue of fact by competent proof that the assignors failed to attend the IMEs, and we agree. While defendant denied the claims based upon the assignors' failures to appear for scheduled IMEs, defendant did not submit evidence in admissible form from anyone with personal knowledge of the assignors' nonappearances (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]).

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