December 24, 2003

A.B. Med. Servs. v Eagle Ins. Co. (2003 NY Slip Op 23978)

https://www.beynensonlaw.com/case-law/a-b-med-servs-v-eagle-ins-co-2003-ny-slip-op-23978/

Court: Appellate Term, Second Department
Decided: December 24, 2003
Citation: 2003 NY Slip Op 23978 · 3 Misc 3d 8
Posture: Summary judgment
Outcome: Split result
Later treatment: Distinguished in 1, contrasted (cf., but see) in 2 and followed in 12 later decisions (see Cited by)
Issues: Staged accidents, lack of coverage Provider's prima facie case Verification requests
Legal questions: No covered accident (founded belief) · Claimant's prima facie case on motions (see the maps)

Cite as

A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 (App Term, 2d Dept 2003)

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.

The insurer's investigator's affidavit failed to raise a triable issue that the collision was staged. The Appellate Term, Second Department, modified the order to grant the providers partial summary judgment on claims supported by completed claim forms, while affirming denial as to one claim omitted from the motion papers. Although a staged-accident defense survives an untimely denial, allegations of suspicious prior accidents involving the insured and a recommendation to investigate the assignor were speculative. The insurer failed to prove timely EUO requests under 11 NYCRR 65-3.5 (a); the requests also could not toll the 30-day determination period because former 11 NYCRR 65.12 (d) did not authorize EUOs. The matter was remanded for statutory interest and attorney fees under Insurance Law § 5106 (a) and proceedings on the remaining claim.

Reported in New York Official Reports at A.B. Med. Servs. v Eagle Ins. Co. (2003 NY Slip Op 23978)

A.B. Med. Servs. v Eagle Ins. Co.

2003 NY Slip Op 23978 [3 Misc 3d 8]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 2, 2004

[*1]

A.B. Medical Services PLLC et al., Appellants,
v
Eagle Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, December 24, 2003

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Samuel K. Rubin, Bethpage (Lawrence R. Miles of counsel), for respondent.

{**3 Misc 3d at 9} OPINION OF THE COURT

Memorandum.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $10,635.26, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees, and for all further proceedings on the remaining portion of the claim in accordance with the decision therein; as so modified, affirmed without costs.

Plaintiffs commenced this action to recover $10,805.26 in assigned first-party no-fault benefits, plus interest and attorney’s fees, pursuant to Insurance Law § 5101 for medical services rendered to their assignor for injuries she sustained in a motor vehicle accident. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion which was denied by order of the court below entered September 26, 2002.

A review of the record indicates that with the exception of one of two $170 claims filed on behalf of Daniel Kim’s Acupuncture P.C., plaintiffs established their entitlement to summary judgment for the recovery of no-fault benefits prima facie by proof that they submitted to defendant the completed claim form (Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2003 NY Slip Op 51700[U] [decided herewith]; Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999, at 31, col 4 [App Term, 9th & 10th Jud Dists]; accord S & M Supply v GEICO Ins., 2003 NY Slip Op 51192[U] [App Term, 2d & 11th Jud Dists]; Choicenet Chiropractic v Allstate Ins. Co., 2003 NY Slip Op 50672[U] [App Term, 2d & 11th Jud Dists]; see Dermatossian v New York City Tr. Auth., 67 NY2d [*2]219, 225 [1986]). The burden then shifted to defendant to demonstrate a triable issue whether plaintiffs are entitled to all or any portion of the benefits sought (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

While we agree that the preclusion rule does not apply to a defense based on a claim that the incident was not an accident but a deliberate event staged in furtherance of a scheme to defraud the insurer (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]), defendant’s sole proof of the matter, in the form of an affidavit of its investigator, failed to raise a triable issue of fraud. Here, the report, which was unsworn, alleged, essentially, only that the “uncooperative”{**3 Misc 3d at 10} insured (but not the assignor) had been involved in prior accidents alleged to be “suspicious,” and as to the assignor, recommended merely that the payment of benefits be deferred pending further investigation. Such unsubstantiated hypotheses and suppositions are insufficient to raise a triable issue of the assignor’s fraud, and partial summary judgment should have been granted as to the properly proven claims (see Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]). However, the court properly denied summary judgment as to one claim for $170, proof of which was omitted from the motion papers.

We note, finally, that while plaintiff concededly failed to respond to defendant’s several requests for verification in the form of an examination of the assignor under oath, not only did defendant fail to prove that the requests were timely (11 NYCRR 65-3.5 [a]), but such requests would not have tolled the 30-day claim determination period because at the time plaintiffs filed the instant claims there was no provision in the insurance regulations for such a procedure (compare 11 NYCRR 65.12 [d], with 11 NYCRR 65-3.5 [e] [eff Apr. 5, 2002]; A.B. Med. Servs. v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; Bronx Med. Servs. v Lumbermans Mut. Cas. Co., 2003 NY Slip Op 51022[U] [App Term, 1st Dept]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $10,635.26, the portion of the claims for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]) and for all further proceedings on the remaining claim.

Doyle, P.J., Winick and Skelos, JJ., concur.

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.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it

Held the staged-accident defense not raised because the investigator's unsworn report offered only suppositions about the insured's prior suspicious accidents and a recommendation to defer payment, so partial summary judgment for the providers was granted.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 80 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Claimant's prima facie case on motions

Open the full map

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 providers made their prima facie showing by proof they submitted completed claim forms, except for one $170 claim whose proof was omitted from the motion papers.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

Damadian Mri In Elmhurst v Liberty Mut. Ins. Co. (2003 NY Slip Op 51700(U)) FollowedA provider need not submit additional medical-necessity evidence to obtain summary judgment when the insurer is precluded from that defense.
A.B. Med. Servs. PLLC Royalton Chiropractic P.C. v Lumbermens Mut. Cas. Co. (2003 NY Slip Op 51392(U))An EUO request does not toll the 30-day payment-or-denial period under the no-fault regulation governing services rendered in 2001.

Cited by (30)

A label shows how the later decision treated this one.

Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 24356) DistinguishedThe EUO regulation applies to claims filed after its effective date under policies issued and effective after September 1, 2001.
Statewide Med. Acupuncture Servs., PC v Travelers Ins. Co. (2005 NY Slip Op 51773(U)) Contrasted (cf., but see)The insurer's incorporation-fraud allegations lacked a reliable foundation for compelling depositions of the providers' owner and acupuncturists.
A.B. Med. Servs. PLCC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 24181) Contrasted (cf., but see)The insurer's EUO transcripts and investigator's affidavit raised triable fraud issues despite untimely denials.
Inwood Hill Med. v Allstate Ins. Co. (2004 NY Slip Op 50565(U)) FollowedThe insurer's EUO evidence failed to raise a triable issue that the injuries did not arise from an insured incident.
Manhattan Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51844(U)) FollowedStaged accident and fraudulent incorporation defenses remain available despite an insurer's late denial.
JSI Expert Serv. v Liberty Mut. Ins. Co. (2005 NY Slip Op 50513(U)) FollowedAn insurer's fraud defense, including a staged-accident defense, requires clear and convincing evidence at trial.
Star Med. Servs., P.C. v Allstate Ins. Co. (2004 NY Slip Op 24410) FollowedThe insurer's misaddressed EUO notices did not toll the denial period despite receipt by the driver's tort attorney.
S & M Supply Inc. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51250(U)) FollowedThe insurer's founded belief in a staged collision defeated summary judgment, although its EUO nonappearance defense was precluded.
Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50394(U)) FollowedThe insurer failed to prove mailing of EUO requests or a founded belief that the injuries arose outside a covered incident.
Empire State Rehab PT PC v Liberty Mut. Ins. Co. (2026 NY Slip Op 50894(U)) FollowedThe insurer's evidence of EUO inconsistencies and allegedly disproportionate injuries did not establish a staged collision as a matter of law.

Show all 30 citing decisions

Similar decisions

A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U))The insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2006 NY Slip Op 51334(U))The insurer's incomplete denial and inadmissible fraud proof failed to defeat the health care providers' summary judgment motion.
A.B. Med. Servs. v GEICO Ins. (2003 NY Slip Op 23949)A provider need not prove medical necessity at the claim stage or on a subsequent motion for summary judgment.
A.B. Med. Servs. PLLC v USAA Cas. Ins. Co. (2004 NY Slip Op 51682(U))The provider proved mailing of one claim, while the insurer failed to prove mailing of IME notices supporting two other denials.
A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2005 NYSlipOp 50785(U))The insurer's attorney affirmation and unsworn reports failed to raise a triable staged-collision issue without an excuse for inadmissibility.