August 2, 2019

Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51257(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-american-tr-ins-co-2019-ny-slip-op-51257u/

Court: Appellate Term, Second Department
Decided: August 2, 2019
Citation: 2019 NY Slip Op 51257(U) · 64 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Compas Med., P.C. v American Tr. Ins. Co., 64 Misc 3d 141(A), 2019 NY Slip Op 51257(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 established timely mailing of the EUO scheduling letters and the assignor's failure to appear. The provider appealed from an order denying its motion for summary judgment and granting the insurer's cross motion dismissing the complaint. In rejecting the provider's challenge to the mailing address, the Appellate Term, Second Department, found that the insurer had sent the letters to the address the provider supplied in its bills. The order was affirmed.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51257(U))

[*1]

Compas Med., P.C. v American Tr. Ins. Co.

2019 NY Slip Op 51257(U) [64 Misc 3d 141(A)]

Decided on August 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-847 K C

Compas Medical, P.C., as Assignee of McGarrell, Curtis, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 31, 2017. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contentions on appeal, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). To the extent plaintiff challenges the address to which the EUO scheduling letters were mailed, a review of the record shows that defendant mailed the EUO scheduling letters to the address provided by plaintiff in the bills it sent to defendant.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 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.

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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the insurer established timely mailing of the EUO scheduling letters, rejecting the address challenge because they went to the address the provider gave on its bills.

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, 809 (this one included) are in the same category.

No-show defense: insurer's proof

Open the full map

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 EUO letters to the address on the provider's bills and the assignor's nonappearance at the scheduled EUOs.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

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.

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.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.

Cited by

A label shows how the later decision treated this one.

AB Quality Health Supply Corp. v Nationwide Ins. (2022 NY Slip Op 50299(U)) FollowedThe insurer established proper mailing of the assignor's EUO notices to the address on the provider's NF-3 forms.

Similar decisions

Compas Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 51842(U))The insurer failed to establish timely mailing of its denials and was denied summary judgment on its EUO nonappearance defense.
Compas Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51019(U))The defendant established the assignor's EUO nonappearances and a presumption of timely mailing of the denial forms.
Compas v Travelers Ins. Co. (2018 NY Slip Op 50821(U))The insurer established the provider's EUO nonappearances through an affirmation from the attorney present to conduct the EUOs. The provider challenged the sufficiency of the affirmation in its action for assigned no-fault benefits.
Compas Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 50953(U))The insurer's submissions established a presumption that its IME nonappearance denials were timely and properly mailed.
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51683(U))The insurer established timely mailing of EUO scheduling letters and the provider's failure to appear for the scheduled EUOs. In the provider's action to recover assigned first-party no-fault benefits, the Civil Court, Kings County, granted the insurer's motion for summary judgment dismissing the complaint.