December 19, 2017

Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2017 NY Slip Op 51791(U))

https://www.beynensonlaw.com/case-law/big-apple-ortho-prods-inc-v-allstate-ins-co-2017-ny-slip-op51791u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51791(U) · 58 Misc 3d 134(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion EUO no-show
Legal questions: No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

Big Apple Ortho Prods., Inc. v Allstate Ins. Co., 58 Misc 3d 134(A), 2017 NY Slip Op 51791(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 failed to prove timely mailing of its denial because its affidavits did not sufficiently describe an office mailing procedure. The provider appealed dismissal of its assigned no-fault complaint based on failure to appear for duly scheduled EUOs. The insurer's affidavits did not sufficiently set forth a standard office practice or procedure that would ensure timely mailing of the denial form. It therefore failed to demonstrate entitlement to summary judgment on the EUO defense. The Appellate Term, Second Department, reversed the order and denied the insurer's summary judgment motion.

Reported in New York Official Reports at Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2017 NY Slip Op 51791(U))

[*1]

Big Apple Ortho Prods., Inc. v Allstate Ins. Co.

2017 NY Slip Op 51791(U) [58 Misc 3d 134(A)]

Decided on December 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 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
2015-228 K C

Big Apple Ortho Products, Inc., as Assignee of Ianotti, Ann-Marie, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Stern & Montana, LLP (Richard Montana, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 based upon plaintiff’s failure to appear for duly scheduled examinations under oath.

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure 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]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 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.

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 not entitled to summary judgment on its EUO no-show defense because its affidavits did not set forth a standard office practice ensuring the denial of claim form was timely mailed.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decision

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.

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 proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's affidavits did not sufficiently describe a standard office practice ensuring timely mailing of the denial, so its EUO no-show summary judgment motion failed.

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, 260 (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

Compas Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 51842(U))The insurer failed to establish timely mailing of its denials and was denied summary judgment on its EUO nonappearance defense.
Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51377(U))The insurer failed to establish timely mailing of the denial supporting its provider EUO nonappearance defense.
Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))The insurer failed to establish timely denial mailing, and the provider failed to establish prima facie entitlement to payment.
Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))The provider's challenge to proof of denial mailing failed, and its remaining argument was raised for the first time on appeal.
Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51646(U))The insurer established timely EUO notices and denials and the provider's two nonappearances, with no triable issue raised in opposition.