December 15, 2017

Maxford, Inc. v Utica Mut. Ins. Co. (2017 NY Slip Op 51756(U))

https://www.beynensonlaw.com/case-law/maxford-inc-v-utica-mut-ins-co-2017-ny-slip-op-51756u/

Court: Appellate Term, Second Department
Decided: December 15, 2017
Citation: 2017 NY Slip Op 51756(U) · 58 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? (see the maps)

Cite as

Maxford, Inc. v Utica Mut. Ins. Co., 58 Misc 3d 131(A), 2017 NY Slip Op 51756(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 established that its denial was issued within 30 days after receipt of the bills, and the provider did not rebut that showing. The provider appealed summary judgment dismissing its assigned no-fault complaint on two grounds, including failure to appear for duly scheduled EUOs. Because the provider raised no other appellate issue concerning the insurer's proof of the EUO defense, the Appellate Term, Second Department, affirmed the order granting dismissal. It did not reach the provider's remaining arguments.

Reported in New York Official Reports at Maxford, Inc. v Utica Mut. Ins. Co. (2017 NY Slip Op 51756(U))

[*1]

Maxford, Inc. v Utica Mut. Ins. Co.

2017 NY Slip Op 51756(U) [58 Misc 3d 131(A)]

Decided on December 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 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
2014-2066 Q C

Maxford, Inc., as Assignee of Reynolds, Gregory, Appellant,
against
Utica Mutual Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Dodge & Monroy, P.C. (Peter X. Dodge, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 31, 2014. 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 two grounds, including that plaintiff had failed to appear for duly scheduled examinations under oath (EUO).

Contrary to plaintiff’s contention, defendant demonstrated, prima facie, that its denial of claim form had been issued within 30 days of its receipt of the bills at issue, and plaintiff failed to rebut that showing. As plaintiff raised no other issue on appeal with respect to defendant’s proof regarding its defense that plaintiff had failed to appear for scheduled EUOs, we need not consider plaintiff’s remaining arguments.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017

Legal questions

A question 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

Held the insurer showed prima facie that its denial on the EUO no-show ground was issued within 30 days of receiving the bills, and the provider failed to rebut that showing.

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.

Similar decisions

Maxford, Inc. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51057(U))The insurer failed to establish that it would not have issued the same policy had accurate residence and garaging information been disclosed.
Parsons Med. Supply, Inc. v Utica Mut. Ins. Co. (2012 NY Slip Op 52397(U))The insurer failed to establish timely EUO requests and tolling of its time to pay or deny the provider's claims.
Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.
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.
Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U))An EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear.