November 6, 2020
Tsatskis v Travelers Ins. Co. (2020 NY Slip Op 51323(U))
https://www.beynensonlaw.com/case-law/tsatskis-v-travelers-ins-co-2020-ny-slip-op-51323u/
- Decided
- November 6, 2020
- Citation
- 2020 NY Slip Op 51323(U)
- Posture
- Summary judgment
- Outcome
- Split result
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 Tsatskis v Travelers Ins. Co. (2020 NY Slip Op 51323(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (William P. Kleen of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 28, 2018. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action and denied the branches of plaintiff’s cross motion seeking summary judgment upon those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting, insofar as is relevant to this appeal, that it had not received the claims underlying the second, third, and sixth through ninth causes of action, and that with respect to the fourth and fifth causes of action, plaintiff had not complied with a condition precedent to coverage because he had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order entered February 28, 2018, the Civil Court, insofar as is relevant to this appeal, granted the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action and denied the branches of plaintiff’s cross motion seeking summary judgment upon those causes of action.
The affidavit of defendant’s claims litigation representative established that defendant had [*2]not received the claim forms underlying the second, third, and sixth through ninth causes of action. However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that those claim forms had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; see also Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In light of the foregoing, there is a triable issue of fact as to whether those claims were timely submitted to defendant.
Plaintiff correctly argues that defendant failed to demonstrate that it was entitled to summary judgment dismissing the fourth and fifth causes of action based on plaintiff’s failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claims underlying those causes of action, and, therefore, the request was a nullity as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on these causes of action, as the proof submitted in support of its motion failed to establish either that the claims had not been timely denied or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action are denied.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)
Held the provider failed its prima facie burden on the EUO-related claims because its proof did not show the claims had not been timely denied or that timely denials were conclusory, vague or without merit.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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 mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received
Held the provider owner's affidavit raised a presumption that the claim forms were mailed and received, which, against the insurer's non-receipt affidavit, created a triable issue as to submission of those claims.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 99 (this one included) are in the same category.
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 the insurer failed to establish its EUO no-show defense because the initial EUO request was sent more than 30 days after it received the claims, making the request a nullity as to them.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50307(U))The insurer failed to establish IME nonappearance, excessive fees, duplicate billing, or nonreceipt, and timely claim submission remained disputed.
- Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U)) FollowedThe insurer's EUO requests were untimely because they followed receipt of the bills by more than 15 business days and 30 calendar days.
- O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U)) FollowedThe insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Similar decisions
- Nassau Chiropractic Servs., P.C. v Travelers Indem. Co. (2022 NY Slip Op 50933(U))The insurer established timely mailing of EUO notices and the denial, and the provider's failure to appear for the EUOs. Office-practice affidavits proved mailing, and affirmations from attorneys present to conduct the EUOs established the nonappearances.
- Parisien v Travelers Ins. Co. (2019 NY Slip Op 51162(U))The insurer established that five causes of action were premature because timely requested verification remained outstanding.
- Parisien v 21st Century Ins. Co. (2019 NY Slip Op 50275(U))The insurer's late EUO follow-up letter defeated summary judgment on one claim, while disputed receipt defeated summary judgment on another.
- Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))The insurer failed to establish timely denials for seven claims but proved timely mailing of EUO notices and denials for two others.
- Action Potential Chiropractic, PLLC v Travelers Ins. Co. (2018 NY Slip Op 51811(U))The provider failed to establish that its claim was untimely denied or that a timely denial was legally insufficient.