December 22, 2017

Greenway Med. Supply Corp. v American Tr. Ins. Co. (2017 NY Slip Op 51901(U))

https://www.beynensonlaw.com/case-law/greenway-med-supply-corp-v-american-tr-ins-co-2017-ny-slip-op51901u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51901(U) · 58 Misc 3d 144(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

Greenway Med. Supply Corp. v American Tr. Ins. Co., 58 Misc 3d 144(A), 2017 NY Slip Op 51901(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 dismissal for the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, upheld the insurer's motion and denial of the provider's cross motion, finding proper mailing and nonappearance established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.

Reported in New York Official Reports at Greenway Med. Supply Corp. v American Tr. Ins. Co. (2017 NY Slip Op 51901(U))

[*1]

Greenway Med. Supply Corp. v American Tr. Ins. Co.

2017 NY Slip Op 51901(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-2032 K C

Greenway Medical Supply Corp., as Assignee of Molina, Jose, Appellant,
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 6, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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 (EUOs), and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s arguments as to defendant’s motion, defendant’s proof sufficiently established the 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.

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's proof sufficiently established proper mailing of the EUO scheduling letters, rejecting the provider's arguments.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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 proper mailing of the EUO scheduling letters and the provider's failure to appear for the scheduled EUOs.

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

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (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.

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50777(U)) FollowedThe insurer's motion for summary judgment dismissing the provider's complaint for EUO nonappearance was granted.

Similar decisions

Greenway Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51765(U))The insurer's attorney's affirmation established the provider's EUO nonappearance, and its affidavits proved timely mailing of the denial.
Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U))The insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed.
Greenway Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51711(U))The defendant's proof established a presumption that the denial forms were timely mailed in support of its EUO nonappearance defense.
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 52068(U))The insurer's cross motion for summary judgment dismissing the complaint for the provider's EUO nonappearance was granted and affirmed.
Greenway Med. Supply Corp. v Hartford Ins. Co. (2017 NY Slip Op 51262(U))The insurer's proof established timely denials, resolving the sole remaining issue on its IME nonappearance defense.