October 18, 2019
Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51688(U))
https://www.beynensonlaw.com/case-law/lidas-med-supply-inc-v-global-liberty-ins-2019-ny-slip-op-51688u/
- Decided
- October 18, 2019
- Citation
- 2019 NY Slip Op 51688(U) · 65 Misc 3d 138(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Proof of mailing · No-show defense: insurer's proof (see the maps)
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 Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51688(U))
| Lidas Med. Supply, Inc. v Global Liberty Ins. |
| 2019 NY Slip Op 51688(U) [65 Misc 3d 138(A)] |
| Decided on October 18, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-2120 K C
against
Global Liberty Insurance, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Office of John Gallagher, PLLC, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Andrew Borrok, J.), entered July 5, 2017. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground, among others, that it had timely and properly denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). In an order entered July 5, 2017, the Civil Court denied defendant’s cross motion, but, in effect pursuant to CPLR 3212 (a), held that the only remaining issue for trial was whether the assignor’s address to which the IME scheduling letters had been mailed was proper.
The record demonstrates conclusively that while the address to which defendant mailed the letters did not include an apartment number, the address matched the one provided by plaintiff’s assignor on the assignor’s sworn application for no-fault benefits (NF-2) and on the assignor’s sworn notice of intention to make claim form which was submitted to defendant. [*2]Consequently, defendant established that the address to which the IME scheduling letters were mailed was proper (see Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 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.
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 IME scheduling letters went to a proper address because, though lacking an apartment number, it matched the address the assignor gave on the sworn NF-2 and notice of intention.
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.
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 established that the IME scheduling letters were mailed to a proper address matching the assignor's own sworn forms, the only remaining issue, so its cross motion was granted.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Sunlight Med. Care, P.C. v Esurance Ins. Co. (2015 NY Slip Op 51410(U)) FollowedThe insurer properly sent EUO notices to the address supplied on the provider's bills and the assignor's no-fault and assignment forms.
Similar decisions
- Lida’s Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51691(U))The provider's summary judgment motion was denied because it failed to establish untimely denial or a legally insufficient timely denial.
- Lida’s Med. Supply, Inc. v Hereford Ins. Co. (2019 NY Slip Op 51356(U))The provider failed to establish entitlement to payment, and the insurer failed to establish timely mailing of its follow-up IME letter.
- Lenex Servs., Inc. v Global Liberty Ins. of N.Y. (2020 NY Slip Op 51382(U))The insurer failed to establish proper addressing and mailing of the IME scheduling letters supporting its nonappearance defense.
- Lida’s Med. Supply, Inc. v Park Ins. Co. (2019 NY Slip Op 51282(U))The insurer's summary judgment motion based on the assignor's failure to appear for duly scheduled IMEs was granted on appeal.
- Medcare Supply, Inc. v Global Liberty Ins. (2020 NY Slip Op 50231(U))The insurer established timely mailing of IME notices and the denial, and the assignor's failure to attend the scheduled IMEs. The provider had obtained summary judgment in its assigned no-fault benefits action, while Civil Court denied the insurer's cross motion asserting the IME no-show defense.