November 30, 2018

Parisien v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51770(U))

https://www.beynensonlaw.com/case-law/parisien-v-state-farm-mut-auto-ins-co-2018-ny-slip-op-51770u/

Court: Appellate Term, Second Department
Decided: November 30, 2018
Citation: 2018 NY Slip Op 51770(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Timeliness and preclusion EUO no-show
Legal questions: No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

Parisien v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 51770(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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's summary judgment motion dismissing the provider's claims for the assignor's EUO nonappearance was granted. The Appellate Term, Second Department, affirmed, rejecting the provider's sole contention by stating that the insurer established timely mailing of the denial under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., without describing the mailing proof.

Reported in New York Official Reports at Parisien v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51770(U))

[*1]

Parisien v State Farm Mut. Auto. Ins. Co.

2018 NY Slip Op 51770(U)

Decided on November 30, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-976 Q C

Jules Francois Parisien, M.D., as Assignee of Jean-Charles, Claudine, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 7, 2016. The order granted defendant’s 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath.

Contrary to plaintiff’s sole contention, defendant established 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]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018

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: Timely denial required as part of the no-show defense, and the insurer showed it

Rejected the provider's sole contention and held the insurer established timely mailing of its denial on the EUO no-show ground, so summary judgment dismissing the complaint was affirmed.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decision

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the insurer established that its denial of claim form, based on the EUO no-show, had been timely mailed, the provider's sole contention.

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.

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 Nationwide Ins. (2019 NY Slip Op 51980(U))The insurer's proof raised a presumption that its denial-of-claim forms had been properly mailed.
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 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.
Gentlecare Ambulatory Anesthesia Servs. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51152(U))The insurer's summary judgment dismissal for EUO nonappearance was affirmed after the provider's mailing challenges were rejected.