December 8, 2004
King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 51550(U))
https://www.beynensonlaw.com/case-law/kings-med-supply-inc-v-new-york-cent-mut-fire-ins-co-2004-ny-slip-op-51550u/
- Decided
- December 8, 2004
- Citation
- 2004 NY Slip Op 51550(U)
- Posture
- Default or vacatur
- Outcome
- Provider prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 51550(U))
| King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. |
| 2004 NY Slip Op 51550(U) |
| Decided on December 8, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: December 8, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2003-1042 K C
against
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Respondent.
Appeal by plaintiff from an order of the Civil Court, Kings County (R. Garson, J.), entered June 10, 2003, which granted defendant’s motion to vacate an order granting plaintiff’s motion for summary judgment on default and which restored the matter to the motion calendar for a determination of plaintiff’s underlying motion on the merits.
Order unanimously reversed without costs, defendant’s motion to vacate the order granting plaintiff’s motion for summary judgment denied, and judgment reinstated.
In this action to recover assigned first-party no-fault benefits, after the court awarded plaintiff summary judgment upon defendant’s default, defendant was obligated to establish both a reasonable excuse for its default and a meritorious defense (CPLR 5015 [a] [1]; Parker v City of New York, 272 AD2d 310 [2000]). The insurer’s only defense, that each assignor failed to appear for a scheduled independent medical examination (IME), is without merit and the motion to vacate should have been denied.
Within days of each assignor’s failure to appear for an IME scheduled subsequent to defendant’s receipt of plaintiff’s proofs of claim, defendant denied the assignee’s claims. However, an assignor’s failure to attend a single requested IME does not afford an insurer a valid basis to deny a no-fault claim where the insurer failed to exhaust the follow-up verification [*2]protocols, which required, inter alia, that “if any requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was originally requested [with a new request]” (11 NYCRR 65.15 [e] [2] [now 15 days,11 NYCRR 65-3.5 (b)]; S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists] [defendant’s rejection of the claim, “before plaintiff’s time to produce the verification had expired, on the ground that it had not received same” was premature and ineffective]; see also 11 NYCRR 65.15 [g] [2] [iii] [“an insurer shall not issue a denial of claim form . . . prior to its receipt of verification of all of the relevant information requested . . .”]; New York Hosp. Med. Ctr. of Queens v County-Wide Ins. Co., 295 AD2d 583, 585 [2002]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431, 433 [1996]; Glassman D.C., P.C. v State Farm Mut. Auto. Ins. Co., 192 Misc 2d 264, 265 [App Term, 2d & 11th Jud Dists 2002]). As the denials otherwise interposed no substantive defense to the action, and its time to pay or deny the claims having expired (Insurance Law § 5106 [a]), defendant is precluded from interposing defenses with exceptions herein inapplicable (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 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]). Accordingly, defendant’s motion should have been denied on the ground that it has failed to establish a meritorious defense warranting the vacatur of the order granted on default.
Decision Date: December 08, 2004
Legal questions (2)
Questions 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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements
Held a single missed post-claim IME gave no valid basis to deny because the insurer did not exhaust the follow-up protocol by sending a second request, so it showed no meritorious defense to vacate its default.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 101 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial (rules on the question, but another ground decided the case)
Held the IME no-show denials premature and ineffective because no follow-up request was sent, so the time to pay or deny expired and the insurer was precluded, lacking a meritorious defense for vacatur.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.
Cited in this decision
- Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 24119)An insurer may not deny equipment fees as exceeding local prevailing rates when the applicable schedule limits reimbursement to 150% of cost.
- 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.
Cited by
A label shows how the later decision treated this one.
- Star Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 50245(U)) FollowedThe insurer failed to support its EUO defense but raised a triable issue of whether other claims arose from an insured incident.
- A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2005 NY Slip Op 25456)The providers obtained partial summary judgment because defective EUO requests and incomplete IME follow-up failed to toll denial time.
- King’s Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 50451(U))The insurer's failure to send a timely follow-up verification request ended the toll and precluded its verification defense.
- Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 51745(U))The insurer's untimely examination requests failed to toll its denial deadline, and its staged-accident defense lacked admissible proof.
- Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (2005 NY Slip Op 51747(U))The insurer's untimely EUO request did not toll its denial deadline, and its staged-accident defense lacked admissible proof.
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.
- Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 51315(U))The insurer's IME nonappearance defense failed because it did not establish mailing of the scheduling requests to the assignor.
- Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))The insurer established timely IME notices and the assignor's nonappearance, defeating the provider's claims.
- 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.