December 22, 2017
Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U))
https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-american-tr-ins-co-2017-ny-slip-op51902u/
- Decided
- December 22, 2017
- Citation
- 2017 NY Slip Op 51902(U) · 58 Misc 3d 144(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 Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U))
| Active Care Med. Supply Corp v American Tr. Ins. Co. |
| 2017 NY Slip Op 51902(U) [58 Misc 3d 144(A)] |
| Decided on December 22, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th
JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M.
SOLOMON, JJ
2015-2055 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Daniel J. Tucker, Esq. (Netanel BenChaim, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 9, 2015. 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 had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s sole arguments on appeal, defendant’s proof sufficiently established proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017
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 insurer's proof sufficiently established proper mailing of the EUO scheduling letters, rejecting one of the provider's only appellate arguments.
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 proved proper mailing of the EUO scheduling letters and the provider's failure to appear for the scheduled EUOs.
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.
Similar decisions
- Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50767(U))The insurer's motion for summary judgment dismissing the provider's complaint based on EUO nonappearance was granted.
- Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co. (2018 NY Slip Op 51782(U))The insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted and affirmed on appeal.
- Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 50826(U))The self-insurer established timely mailing of its denial, and the provider's remaining argument was raised for the first time on appeal.
- Greenway Med. Supply Corp. v American Tr. Ins. Co. (2017 NY Slip Op 51901(U))The insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed.
- Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. (2018 NY Slip Op 50770(U))The insurer's motion for summary judgment dismissing the provider's complaint based on EUO and IME nonappearances was granted.