November 29, 2019
Longevity Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co. (2019 NY Slip Op 51956(U))
https://www.beynensonlaw.com/case-law/longevity-med-supply-inc-v-travelers-prop-cas-ins-co-2019-ny-slipop-51956u/
- Decided
- November 29, 2019
- Citation
- 2019 NY Slip Op 51956(U)
- 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 Longevity Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co. (2019 NY Slip Op 51956(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Travelers Property & Casualty Insurance Company, Respondent.
Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt and David Steigbigel of counsel), for appellant. Law Office of Aloy O. Ibuzor (Gina M. Spiteriof counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 3, 2017. The order, insofar as appealed from, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order, insofar as appealed from, is affirmed with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Plaintiff contends that the Civil Court should not have considered defendant’s motion for summary judgment dismissing the complaint because the motion was filed more than 120 days after the notice of trial had been filed. A motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and service of a motion upon a party’s attorney by mail is completed upon mailing (see CPLR 2103 [*2][b] [2]). It is uncontroverted that the notice of trial was filed on August 24, 2016. Consequently, the 120-day period expired on December 22, 2016. Since the affidavit of service of defendant’s motion states that defendant mailed the motion to plaintiff’s attorney on December 13, 2016, defendant’s motion for summary judgment dismissing the complaint was timely (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]).
Contrary to plaintiff’s contention, the affidavits submitted by defendant established its standard office practices and procedures for its mailing of denial of claim forms, and that the denials in the case at bar had been properly and timely mailed to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Moreover, defendant’s affidavits demonstrated that it had twice duly demanded an examination under oath from the assignor, that the assignor had twice failed to appear, and that defendant had denied the claims based on the assignor’s failure to appear (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff’s remaining contentions lack merit or are unpreserved for appellate review. Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, J.P., PESCE and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2019
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.
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
Held the insurer established its EUO no-show defense, including that its denials based on the assignor's two nonappearances were properly and timely mailed, rejecting the provider's challenge to the denial mailing proof.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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
Held the insurer's affidavits established its standard office practices and procedures for mailing denial of claim forms and that the denials were properly and timely mailed, rejecting the provider's contrary contention.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the insurer's affidavits showed it twice duly demanded an EUO from the assignor, the assignor twice failed to appear, and the claims were denied on that ground, warranting dismissal.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (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)The assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51653(U))The provider failed to identify discovery that could raise a triable issue concerning the insurer's EUO nonappearance defense.
Similar decisions
- Longevity Med. Supply, Inc. v Farmington Cas. Co. (2019 NY Slip Op 51626(U))The provider's sole challenge to the insurer's summary judgment motion was unpreserved because it was raised for the first time on appeal.
- Longevity Med. Supply, Inc. v Global Liberty Ins. Co. (2020 NY Slip Op 50527(U))The insurer was awarded summary judgment based on a declaratory judgment barring no-fault benefits for the accident.
- Longevity Med. Supply, Inc. v Travelers Indem. Co. (2022 NY Slip Op 50582(U))The provider's appeal was dismissed because an order holding summary judgment motions in abeyance was not appealable as of right.
- Longevity Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51235(U))The insurer established that it had already paid another provider for the same medical equipment underlying the disputed claim.
- Longevity Med. Supply, Inc. v 21st Century Ins. Co. (2019 NY Slip Op 52041(U))The insurer's uncertified police report failed to establish the out-of-state contacts asserted for forum non conveniens dismissal.