May 21, 2021

JCC Med., P.C. v Lancer Ins. Co. (2021 NY Slip Op 50485(U))

https://www.beynensonlaw.com/case-law/jcc-med-p-c-v-lancer-ins-co-2021-ny-slip-op-50485u/

Court: Appellate Term, Second Department
Decided: May 21, 2021
Citation: 2021 NY Slip Op 50485(U)
Posture: Trial
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show Timeliness and preclusion Trial and evidence
Legal questions: Proof of mailing · No-show defense: insurer's proof · No-show: coverage defense or precludable? (see the maps)

Cite as

JCC Med., P.C. v Lancer Ins. Co., 2021 NY Slip Op 50485(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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.

Proof of timely first-class mailing of EUO scheduling letters makes proof that copies were also sent by certified mail unnecessary. A prior order under CPLR 3212 (g) limited the nonjury trial to timely mailing of the EUO letters and denial forms. The insurer established timely first-class mailing of the letters, contrary to the trial court's conclusion that proof of certified mailing was also needed. The claims examiner's testimony established timely mailing of the denials despite the examiner's lack of direct supervisory authority over mail personnel. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter to Civil Court, Kings County, for entry of judgment dismissing the complaint in favor of the insurer.

Reported in New York Official Reports at JCC Med., P.C. v Lancer Ins. Co. (2021 NY Slip Op 50485(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

JCC Medical, P.C., as Assignee of Damis, Magalie, Respondent,
against
Lancer Insurance Co., Appellant.

Hollander Legal Group, P.C.(Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered May 4, 2018. The judgment, entered pursuant to a decision of that court dated November 16, 2017, after a nonjury trial, awarded plaintiff the principal sum of $3,695.34.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated November 16, 2017 is deemed a premature notice of appeal from the judgment entered May 4, 2018 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $3,695.34.

At the outset of the trial, the parties noted that, by a prior order, the issues for trial would be limited (see CPLR 3212 [g]) to defendant’s proof of timely mailing of the examination under oath (EUO) scheduling letters and the denial of claim forms. As defendant established that the EUO scheduling letters were timely mailed to plaintiff by first class mail, contrary to the Civil Court’s conclusion, it is irrelevant that defendant failed to establish that copies of such letters were also mailed to plaintiff by certified mail, return receipt requested (see Adelaida Physical Therapy, P.C. v Ameriprise Auto & Home, 53 Misc 3d 142[A], 2016 NY Slip Op 51540[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). In addition, the testimony of defendant’s no-fault claims examiner was sufficient to establish that the denial of claim forms were timely mailed (see St. Vincent’s Hosp. of Richmond [*2]v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff notwithstanding that the no-fault claims examiner did not have direct supervisory authority over defendant’s mail personnel (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 21, 2021

Legal questions (3)

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.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held after trial that the insurer proved first-class mailing of the EUO scheduling letters, making certified-mail proof irrelevant, and that the claims examiner's testimony established timely mailing of denials despite lacking supervisory authority over mail staff.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer proved at trial that the EUO scheduling letters were timely mailed by first-class mail, the only contested element, so judgment for the provider was reversed and the complaint dismissed.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.

No-show: coverage defense or precludable?

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Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)

Held at trial on the EUO no-show defense that the claims examiner's testimony established timely mailing of the denial of claim forms, so the defense was not precluded and the complaint was dismissed.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category.

Cited in this decision

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

MML Med. Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51792(U)) FollowedThe assignor's EUO nonappearance was not excused by apparent nondelivery of certified notices where first-class mailing was unrebutted.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.

Cited by

A label shows how the later decision treated this one.

Grand Plus Supply, Inc. v GEICO Indem. Co. (2026 NY Slip Op 51588(U)) FollowedThe insurer's affidavits established timely and proper mailing of the EUO scheduling letters and denial of claim form.
First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U))The insurer's summary judgment dismissing claims for the assignor's EUO nonappearances was affirmed on proof of timely denial.
Dr. Orenbakh Psychologist, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 50566(U))The insurer proved EUO nonappearance for later claims, but its first EUO request was a nullity for a claim received more than 30 days earlier.
ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50795(U))The insurer established timely mailing of the assignor's EUO scheduling letters through its standard office practices and procedures.

Similar decisions

JFL Med. Care, P.C. v Lancer Ins. Co. (2022 NY Slip Op 50056(U))The insurer's summary judgment motion was granted based on established mailing of IME scheduling letters to the assignor.
RA Med. Servs., P.C. v Lancer Ins. Co. (2022 NY Slip Op 50793(U))The insurer's EUO requests were nullities for the claims at issue because the initial request was sent more than 30 days after receipt.
Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U))The insurer's summary judgment dismissing the complaint for the provider's EUO nonappearance was affirmed.
Prestige Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2022 NY Slip Op 50591(U))EUO scheduling letters identifying the accident date and assignor need not specify the bills to which they pertain.
NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51367(U))The insurer proved the provider's EUO nonappearance and timely mailing of scheduling letters and denials, and the provider failed to rebut nonappearance.