November 29, 2019

Parisien v Nationwide Ins. (2019 NY Slip Op 51949(U))

https://www.beynensonlaw.com/case-law/parisien-v-nationwide-ins-2019-ny-slip-op-51949u/

Court: Appellate Term, Second Department
Decided: November 29, 2019
Citation: 2019 NY Slip Op 51949(U) · 65 Misc 3d 155(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show Timeliness and preclusion Declaratory judgment, res judicata
Legal questions: No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

Parisien v Nationwide Ins., 65 Misc 3d 155(A), 2019 NY Slip Op 51949(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 failed to prove timely mailing of its denial and therefore failed to establish entitlement to judgment on its EUO defense. The provider sought assigned no-fault benefits, and the insurer moved for summary judgment based on the provider's failure to appear for three scheduled EUOs. Its submissions did not establish as a matter of law that the denial was timely mailed, so it did not demonstrate that the defense escaped preclusion. The insurer also invoked collateral estoppel based on an order in another action between the same parties. That doctrine did not apply to this denial because this claim was not at issue there. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.

Reported in New York Official Reports at Parisien v Nationwide Ins. (2019 NY Slip Op 51949(U))

[*1]

Parisien v Nationwide Ins.

2019 NY Slip Op 51949(U) [65 Misc 3d 155(A)]

Decided on November 29, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2017-2004 K C

Jules Francois Parisien, M.D., as Assignee of Frandy Bolivar, Respondent,
against
Nationwide Ins., Appellant.

Harris J. Zakarin, P.C. (Harris J. Zakarin and Alan Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska 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 March 16, 2017. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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, defendant moved for summary judgment dismissing the complaint on the ground that it had timely denied the claim based upon plaintiff’s failure to appear for three duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. Defendant argued in a reply affirmation that, by virtue of an order of the Civil Court (Richard J. Montelione, J.) dated January 6, 2017 in an action involving the same parties, plaintiff was collaterally estopped from disputing elements of defendant’s case. Defendant appeals from so much of an order of the Civil Court (Harriet L. Thompson, J.) entered March 16, 2017 as denied defendant’s motion, rejecting both the proof initially proffered by defendant and the claim of collateral estoppel.

Defendant’s papers failed to establish, as a matter of law, that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defense. Consequently, the Civil Court properly found that defendant is [*2]not entitled to summary judgment dismissing the complaint. We incidentally note that the doctrine of collateral estoppel asserted by defendant would, in any event, not apply to the denial of the claim at issue here, as that claim was not at issue in the prior action.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2019

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-show: coverage defense or precludable?

Open the full map

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

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer, having failed to establish that its denial was timely mailed, did not show it was not precluded from asserting its EUO no-show defense, so summary judgment was denied.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decision

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

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 proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's papers failed to establish as a matter of law that the denial of claim form had been timely mailed.

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, 260 (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.

Similar decisions

Parisien v Allstate Ins. Co. (2019 NY Slip Op 51154(U))The insurer failed to establish timely mailing of its denials, but the provider also failed to establish entitlement to summary judgment.
Parisien v Ameriprise Ins. (2020 NY Slip Op 50990(U))The insurer proved the provider's EUO nonappearances, including one at a location changed at the provider's request, and a timely denial.
Parisien v 21st Century Ins. Co. (2018 NY Slip Op 51652(U))The insurer established timely mailing of the denial forms asserting lack of medical necessity, defeating the provider's appellate challenge.
Parisien v Travelers Ins. Co. (2022 NY Slip Op 50553(U))The insurer established the provider's failure to attend two duly scheduled EUOs and timely denials on that ground.
Parisien v NY City Tr. Auth. (2018 NY Slip Op 51699(U))The self-insurer proved timely mailing of its denials, and the provider's remaining argument was unpreserved.