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May 18, 2018

Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))

https://www.beynensonlaw.com/case-law/preferred-ortho-prods-inc-v-titan-ins-co-2018-ny-slip-op-50732u/

Court
Appellate Term, Second Department
Decided
May 18, 2018
Citation
2018 NY Slip Op 50732(U) · 59 Misc 3d 144(A)
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
Preferred Ortho Prods., Inc. v Titan Ins. Co., 59 Misc 3d 144(A), 2018 NY Slip Op 50732(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 provider's challenge to proof of denial mailing failed, and its remaining argument was raised for the first time on appeal. The insurer obtained summary judgment dismissing an action for assigned no-fault benefits on the ground that the provider failed to appear for duly scheduled EUOs. The Appellate Term, Second Department, rejected the provider's argument concerning the insurer's mailing practices and procedures, citing St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It declined to consider the remaining argument because it was unpreserved and affirmed the order in the insurer's favor.

Reported in New York Official Reports at Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))

[*1]
Preferred Ortho Prods., Inc. v Titan Ins. Co.
2018 NY Slip Op 50732(U) [59 Misc 3d 144(A)]
Decided on May 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 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
2015-2177 Q C
Preferred Ortho Products, Inc., as Assignee of Mercedes, Luis, Appellant,

against

Titan Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Gialleonardo, McDonald & Turchetti (Kevon Lewis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered July 9, 2015. 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 had failed to appear for duly scheduled examinations under oath.

Plaintiff’s argument as to defendant’s practices and procedures regarding the mailing of the denial of claim form lacks merit (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining argument is not properly before this court, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and we decline to consider it.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 18, 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 challenge to the insurer's mailing of the denial and affirmed summary judgment for the insurer on its defense that the provider failed to appear for EUOs.

  • Appellate DivisionApp Div 7
  • Appellate TermApp Term 454
  • Trial courtsTrial 47
2023, Appellate Division: 1 decision (1 Precludable: denial timely)2022, Appellate Division: 1 decision (1 Precludable: denial lacking)2020, Appellate Division: 1 decision (1 Precludable: denial timely)2015, Appellate Division: 1 decision (1 Precludable: denial lacking)2014, Appellate Division: 2 decisions (2 Precludable: denial timely)2009, Appellate Division: 1 decision (1 Precludable: denial lacking)2023, Appellate Term: 4 decisions (1 Precludable: denial lacking, 3 Precludable: denial timely)2022, Appellate Term: 32 decisions (12 Precludable: denial lacking, 20 Precludable: denial timely)2021, Appellate Term: 12 decisions (4 Precludable: denial lacking, 8 Precludable: denial timely)2020, Appellate Term: 25 decisions (4 Precludable: denial lacking, 21 Precludable: denial timely)2019, Appellate Term: 38 decisions (5 Precludable: denial lacking, 33 Precludable: denial timely)2018, Appellate Term: 31 decisions (11 Precludable: denial lacking, 20 Precludable: denial timely)2017, Appellate Term: 50 decisions (13 Precludable: denial lacking, 37 Precludable: denial timely)2016, Appellate Term: 35 decisions (15 Precludable: denial lacking, 20 Precludable: denial timely)2015, Appellate Term: 45 decisions (5 Precludable: denial lacking, 40 Precludable: denial timely)2014, Appellate Term: 34 decisions (14 Precludable: denial lacking, 20 Precludable: denial timely)2013, Appellate Term: 32 decisions (7 Precludable: denial lacking, 25 Precludable: denial timely)2012, Appellate Term: 42 decisions (15 Precludable: denial lacking, 27 Precludable: denial timely)2011, Appellate Term: 24 decisions (5 Precludable: denial lacking, 19 Precludable: denial timely)2010, Appellate Term: 8 decisions (5 Precludable: denial lacking, 3 Precludable: denial timely)2009, Appellate Term: 3 decisions (3 Precludable: denial lacking)2007, Appellate Term: 2 decisions (2 Precludable: denial lacking)2006, Appellate Term: 9 decisions (7 Precludable: denial lacking, 2 Precludable: denial timely)2005, Appellate Term: 10 decisions (9 Precludable: denial lacking, 1 Precludable: denial timely)2004, Appellate Term: 4 decisions (4 Precludable: denial lacking)2024, Appellate Term: 5 decisions (1 Precludable: denial lacking, 4 Precludable: denial timely)2025, Appellate Term: 5 decisions (2 Precludable: denial lacking, 3 Precludable: denial timely)2026, Appellate Term: 3 decisions (3 Precludable: denial timely)2003, Appellate Term: 1 decision (1 Precludable: denial lacking)2023, Trial courts: 1 decision (1 Precludable: denial timely)2022, Trial courts: 3 decisions (1 Precludable: denial lacking, 2 Precludable: denial timely)2021, Trial courts: 8 decisions (2 Precludable: denial lacking, 6 Precludable: denial timely)2020, Trial courts: 3 decisions (2 Precludable: denial lacking, 1 Precludable: denial timely)2019, Trial courts: 5 decisions (5 Precludable: denial lacking)2018, Trial courts: 1 decision (1 Precludable: denial timely)2017, Trial courts: 2 decisions (2 Precludable: denial timely)2016, Trial courts: 3 decisions (1 Precludable: denial lacking, 2 Precludable: denial timely)2014, Trial courts: 3 decisions (3 Precludable: denial timely)2013, Trial courts: 3 decisions (2 Coverage defense, 1 Precludable: denial timely)2012, Trial courts: 1 decision (1 Precludable: denial timely)2011, Trial courts: 2 decisions (2 Coverage defense)2009, Trial courts: 2 decisions (2 Precludable: denial timely)2008, Trial courts: 1 decision (1 Precludable: denial lacking)2006, Trial courts: 1 decision (1 Precludable: denial lacking)2005, Trial courts: 1 decision (1 Precludable: denial lacking)2004, Trial courts: 3 decisions (3 Precludable: denial lacking)2025, Trial courts: 2 decisions (2 Precludable: denial timely)2026, Trial courts: 1 decision (1 Precludable: denial timely)2015, Trial courts: 1 decision (1 Precludable: denial lacking)This decision
20052010201520202025
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

Rejected the provider's challenge to the insurer's practices and procedures for mailing the denial, leaving intact summary judgment for the insurer on its EUO nonappearance defense.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 37
  • Appellate TermApp Term 1,214
  • Trial courtsTrial 148
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2023, Appellate Division: 1 decision (1 Insurer proved mailing)2020, Appellate Division: 1 decision (1 Insurer proved mailing)2016, Appellate Division: 3 decisions (1 Insurer proved mailing, 2 Insurer failed to prove)2015, Appellate Division: 2 decisions (2 Insurer failed to prove)2014, Appellate Division: 3 decisions (2 Insurer proved mailing, 1 Provider proved mailing)2013, Appellate Division: 1 decision (1 Provider proved mailing)2012, Appellate Division: 1 decision (1 Provider proved mailing)2011, Appellate Division: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2010, Appellate Division: 1 decision (1 Provider proved mailing)2008, Appellate Division: 2 decisions (2 Insurer proved mailing)2007, Appellate Division: 7 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 3 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2006, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Provider failed to prove)2005, Appellate Division: 2 decisions (2 Insurer failed to prove)2004, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Triable issue on mailing)2026, Appellate Division: 1 decision (1 Insurer failed to prove)2023, Appellate Term: 6 decisions (5 Insurer proved mailing, 1 Triable issue on mailing)2022, Appellate Term: 44 decisions (32 Insurer proved mailing, 3 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 5 Triable issue on mailing)2021, Appellate Term: 21 decisions (13 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing, 1 Mixed rulings)2020, Appellate Term: 31 decisions (24 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing)2019, Appellate Term: 81 decisions (59 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 12 Triable issue on mailing, 1 Mixed rulings)2018, Appellate Term: 74 decisions (46 Insurer proved mailing, 16 Insurer failed to prove, 1 Provider failed to prove, 10 Triable issue on mailing, 1 Mixed rulings)2017, Appellate Term: 115 decisions (60 Insurer proved mailing, 26 Insurer failed to prove, 4 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 2 Mixed rulings)2016, Appellate Term: 103 decisions (44 Insurer proved mailing, 30 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 3 Mixed rulings)2015, Appellate Term: 97 decisions (66 Insurer proved mailing, 10 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 9 Triable issue on mailing, 8 Mixed rulings)2014, Appellate Term: 68 decisions (55 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 3 Triable issue on mailing, 4 Mixed rulings)2013, Appellate Term: 73 decisions (62 Insurer proved mailing, 6 Insurer failed to prove, 1 Provider proved mailing, 1 Provider failed to prove, 3 Mixed rulings)2012, Appellate Term: 110 decisions (87 Insurer proved mailing, 14 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 1 Triable issue on mailing, 4 Mixed rulings)2011, Appellate Term: 69 decisions (56 Insurer proved mailing, 8 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing, 2 Mixed rulings)2010, Appellate Term: 78 decisions (67 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 2 Mixed rulings)2009, Appellate Term: 53 decisions (29 Insurer proved mailing, 11 Insurer failed to prove, 6 Provider proved mailing, 3 Provider failed to prove, 4 Mixed rulings)2008, Appellate Term: 28 decisions (13 Insurer proved mailing, 11 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Appellate Term: 30 decisions (9 Insurer proved mailing, 16 Insurer failed to prove, 3 Provider proved mailing, 2 Mixed rulings)2006, Appellate Term: 75 decisions (6 Insurer proved mailing, 19 Insurer failed to prove, 21 Provider proved mailing, 21 Provider failed to prove, 8 Mixed rulings)2005, Appellate Term: 27 decisions (2 Insurer proved mailing, 14 Insurer failed to prove, 7 Provider proved mailing, 3 Provider failed to prove, 1 Mixed rulings)2004, Appellate Term: 12 decisions (1 Insurer proved mailing, 4 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 1 Mixed rulings)2003, Appellate Term: 3 decisions (3 Provider proved mailing)2024, Appellate Term: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2025, Appellate Term: 4 decisions (3 Insurer proved mailing, 1 Provider proved mailing)2026, Appellate Term: 8 decisions (3 Insurer proved mailing, 3 Insurer failed to prove, 2 Triable issue on mailing)2023, Trial courts: 4 decisions (2 Insurer proved mailing, 2 Provider proved mailing)2022, Trial courts: 5 decisions (2 Insurer proved mailing, 2 Provider proved mailing, 1 Mixed rulings)2021, Trial courts: 18 decisions (12 Insurer proved mailing, 1 Provider proved mailing, 3 Provider failed to prove, 2 Mixed rulings)2020, Trial courts: 5 decisions (1 Insurer proved mailing, 2 Provider proved mailing, 2 Mixed rulings)2019, Trial courts: 4 decisions (3 Insurer failed to prove, 1 Triable issue on mailing)2018, Trial courts: 1 decision (1 Insurer proved mailing)2017, Trial courts: 7 decisions (5 Insurer proved mailing, 2 Insurer failed to prove)2016, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Triable issue on mailing)2015, Trial courts: 3 decisions (3 Provider proved mailing)2013, Trial courts: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2012, Trial courts: 10 decisions (5 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing)2011, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2010, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2009, Trial courts: 9 decisions (4 Insurer proved mailing, 2 Insurer failed to prove, 3 Provider proved mailing)2008, Trial courts: 13 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 7 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Trial courts: 8 decisions (1 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing)2006, Trial courts: 7 decisions (1 Insurer proved mailing, 6 Insurer failed to prove)2005, Trial courts: 15 decisions (2 Insurer proved mailing, 8 Insurer failed to prove, 1 Provider proved mailing, 4 Provider failed to prove)2004, Trial courts: 10 decisions (5 Insurer failed to prove, 2 Provider proved mailing, 3 Provider failed to prove)2024, Trial courts: 2 decisions (1 Insurer failed to prove, 1 Provider failed to prove)2025, Trial courts: 2 decisions (2 Insurer proved mailing)2026, Trial courts: 7 decisions (3 Insurer proved mailing, 1 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing)This decision
20052010201520202025
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.
  • Mind & Body Acupuncture, P.C. v Elrac, Inc. (2015 NY Slip Op 51219(U))The insurer established full fee-schedule payment, and the provider's challenge to the IME letters' address was unpreserved.

Similar decisions

  • Preferred Ortho Prods., Inc. v 21st Century Ins. Co. (2019 NY Slip Op 50224(U))The provider's challenge to the address on the IME scheduling letters was unpreserved because it was first raised on appeal.
  • Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U))The insurer's summary judgment cross motion dismissing the complaint for the assignor's IME nonappearance was granted and affirmed.
  • Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2018 NY Slip Op 50775(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
  • Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance.
  • Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51320(U))The provider's objection that the IME notices improperly included an apartment number was unpreserved.
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