December 22, 2004
King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 51685(U))
https://www.beynensonlaw.com/case-law/kings-med-supply-inc-v-new-york-cent-mut-fire-ins-co-2004-ny-slip-op-51685u/
- Decided
- December 22, 2004
- Citation
- 2004 NY Slip Op 51685(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Issues
- IME no-show
- Legal questions
- Claimant's prima facie case on motions (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 51685(U))
| King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. |
| 2004 NY Slip Op 51685(U) |
| Decided on December 22, 2004 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
2003-1459 K C
against
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Respondent.
Appeal by plaintiff from an order of the Civil Court, Kings County (M. Solomon, J.), entered on August 20, 2003, which denied its motion for summary judgment.
Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
Plaintiff commenced the instant suit to recover no-fault benefits for medical supplies furnished to its assignor. Plaintiff established prima facie entitlement to summary judgment by proof that it submitted statutory claim forms setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was
overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).
In opposition to plaintiff’s motion, defendant failed to establish the existence of a triable issue of fact. Defendant denied plaintiff’s claim for no-fault benefits on the ground that plaintiff’s assignor failed to appear for independent medical examinations (IMEs) scheduled prior to defendant’s receipt of plaintiff’s claim. While defendant was entitled to request IMEs prior to its receipt of plaintiff’s claim, failure to attend such IMEs is not subject to sanctions under the claim [*2]rules of the insurance regulations, and hence, such failure of plaintiff’s assignor did not constitute a proper basis for denial of no-fault benefits (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]). There being no other defense asserted by defendant, plaintiff’s motion for summary judgment is granted and
[*3]
the matter is remanded for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: December 22, 2004
Legal questions
A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider established prima facie entitlement by proof that it submitted claim forms setting forth the fact and amount of the loss and that payment was overdue.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Cited in this decision
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
Similar decisions
- King’S Med. Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50401(U))An insurer cannot deny a claim for EUO nonappearance under the former regulation by invoking a policy's cooperation clause.
- King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co. (2005 NYSlipOp 50450(U))The insurer's failure to follow up a missed post-claim IME invalidated its denial based on nonappearance.
- Kings Med. Supply Inc. v Geico Ins. (2004 NY Slip Op 50904(U))The insurer's EUO demands did not toll the 30-day claim period because the applicable regulations imposed no EUO requirement.
- Amaze Med. Supply Inc. v General Assur. Co. (2005 NY Slip Op 50960(U))The insurer failed to raise a factual issue on IME nonappearance because it offered no competent proof that the requests were mailed.
- Fair Price Med. Supply Corp. v General Assur. Co. (2005 NY Slip Op 50256(U))The insurer's conclusory proof of IME requests and nonappearance failed to raise a triable issue against the provider's claim.