November 23, 2018

Veraso Med. Supply Corp. v 21st Century Ins. Co. (2018 NY Slip Op 51696(U))

https://www.beynensonlaw.com/case-law/veraso-med-supply-corp-v-21st-century-ins-co-2018-ny-slip-op51696u/

Court: Appellate Term, Second Department
Decided: November 23, 2018
Citation: 2018 NY Slip Op 51696(U) · 61 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show Timeliness and preclusion Provider's prima facie case
Legal questions: No-show: coverage defense or precludable? · Claimant's prima facie case on motions (see the maps)

Cite as

Veraso Med. Supply Corp. v 21st Century Ins. Co., 61 Misc 3d 146(A), 2018 NY Slip Op 51696(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 failed to establish a timely denial after the assignor's alleged EUO nonappearances, defeating its summary judgment cross motion. The insurer therefore did not demonstrate that its EUO defense was free from preclusion under Westchester Med. Ctr. v Lincoln Gen. Ins. Co. The provider also failed to establish entitlement to summary judgment: it showed neither that the claim was not timely denied nor that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving the denial of the provider's motion in place.

Reported in New York Official Reports at Veraso Med. Supply Corp. v 21st Century Ins. Co. (2018 NY Slip Op 51696(U))

[*1]

Veraso Med. Supply Corp. v 21st Century Ins. Co.

2018 NY Slip Op 51696(U) [61 Misc 3d 146(A)]

Decided on November 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 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
2016-1141 K C

Veraso Medical Supply Corp., as Assignee of Connor, John, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan of couunsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 9, 2016. 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 examinations under oath (EUOs).

Plaintiff correctly argues that defendant’s cross motion failed to establish that defendant had timely denied plaintiff’s claim after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s cross motion for summary judgment dismissing the complaint should have been denied.

Contrary to plaintiff’s further contention, plaintiff failed to establish its prima facie [*2]entitlement to summary judgment, as it failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 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: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer's EUO no-show cross motion should have been denied because it failed to establish that it timely denied the claim after the assignor's nonappearances, so it did not show it was not precluded.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed its prima facie burden because it did not establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Cited by

A label shows how the later decision treated this one.

Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U)) FollowedThe 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
Chapa Prods. Corp. v MVAIC (2019 NY Slip Op 29341)An insurer must deny a claim for failure to provide verification within 30 days after the 120-day response period expires.

Similar decisions

Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51360(U))The insurer failed to establish timely mailing of both EUO scheduling letters through its two affidavits.
Veraso Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50583(U))The insurer's motion for summary judgment dismissing the provider's complaint was granted, and the provider's cross motion was denied.
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Healthway Med. Care, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 50733(U))The insurer's EUO requests were nullities because its initial request was sent more than 30 days after receipt of the claims.
New Way Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50917(U))The insurer failed to prove the assignor's EUO nonappearance through someone with personal knowledge.