May 14, 2021
Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))
https://www.beynensonlaw.com/case-law/ditmas-primary-med-care-p-c-v-republic-w-ins-co-2021-ny-slip-op50438u/
- Decided
- May 14, 2021
- Citation
- 2021 NY Slip Op 50438(U) · 71 Misc 3d 137(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))
| Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. |
| 2021 NY Slip Op 50438(U) [71 Misc 3d 137(A)] |
| Decided on May 14, 2021 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 14, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-374 K C
against
Republic Western Ins. Co., Appellant.
Bryan Cave, LLP (Matthew Sarles and Amanda C. Scuder of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 24, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).
The affidavit submitted by defendant established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney was sufficient to establish that the EUO scheduling letters had been timely mailed (id.) and, since he was present in his office to conduct the EUO of plaintiff’s assignor on the scheduled dates, that plaintiff’s assignor had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement upon defendant’s motion seeking summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). [*2]Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 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.
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 timely mailing of the EUO letters and, through the attorney present to conduct the EUOs, the assignor's nonappearance, and the provider raised no triable issue.
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.
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 the insurer's affidavit established timely mailing of the denials as part of its EUO no-show prima facie case.
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.
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 (rules on the question, but another ground decided the case)
Held the insurer's office-practice affidavit established timely mailing of the denials and its attorney's affirmation established timely mailing of the EUO scheduling letters.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U)) FollowedThe insurer proved timely mailing of EUO notices and denials and the provider's nonappearance through an attorney's affirmation.
Similar decisions
- Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co. (2019 NY Slip Op 51617(U))The insurer established timely EUO notices, the assignor's failure to appear twice, and timely denials based on those nonappearances.
- PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.
- BNE Clinton Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50433(U))The insurer established prior payment of four claims and the provider's failure to attend duly scheduled EUOs for the remaining six claims.
- 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.
- Healthway Med. Care, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 50733(U))The insurer's EUO requests were nullities because its initial request was sent more than 30 days after receipt of the claims.