October 27, 2017
Chapa Prods. Corp. v Nationwide Ins. (2017 NY Slip Op 51457(U))
https://www.beynensonlaw.com/case-law/chapa-prods-corp-v-nationwide-ins-2017-ny-slip-op-51457u/
- Decided
- October 27, 2017
- Citation
- 2017 NY Slip Op 51457(U) · 57 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Split result
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 Chapa Prods. Corp. v Nationwide Ins. (2017 NY Slip Op 51457(U))
| Chapa Prods. Corp. v Nationwide Ins. |
| 2017 NY Slip Op 51457(U) [57 Misc 3d 145(A)] |
| Decided on October 27, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 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
NO. 2014-2385 Q C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq. ), for appellant. Gialleonardo, McDonald & Turchetti (Mickei Milton, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered September 12, 2014. 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs).
Plaintiff correctly argues on appeal that the proof submitted by defendant in support of its cross motion was not sufficient to demonstrate proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). We note that, on appeal, defendant argues that an affidavit by a legal secretary of the law firm which scheduled the EUOs attested to the mailing of the scheduling letters. However, as plaintiff states in its brief, no such affidavit is attached to defendant’s cross motion, either as Exhibit D, as stated on appeal, or as Exhibit E, as was listed in defendant’s cross motion.
However, contrary to plaintiff’s further contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted by plaintiff failed to establish that the claim forms at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v [*2]Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 27, 2017
Legal questions (3)
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)
Held the provider failed to show the claims had not been timely denied or that timely denials were conclusory, vague or without merit, so its motion was properly denied.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.
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 proof insufficient to show proper mailing of the EUO scheduling letters, because the legal secretary's mailing affidavit relied on appeal was not actually attached to its cross motion.
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed
Reversed summary judgment for the insurer because its papers did not demonstrate proper mailing of the EUO scheduling letters; the claimed mailing affidavit was missing from the record.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (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.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Similar decisions
- Chapa Prods. Corp. v 21st Century Ins. Co. (2019 NY Slip Op 50741(U))The provider's proof raised factual disputes over timely submission of one claim and mailing of requested verification for another.
- ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50795(U))The insurer established timely mailing of the assignor's EUO scheduling letters through its standard office practices and procedures.
- Chapa Prods. Corp. v Progressive Ins. Co. (2017 NY Slip Op 51026(U))The insurer's motion for summary judgment based on outstanding verification was denied on appeal.
- Vital Chiropractic, P.C. v Nationwide Ins. Co. (2019 NY Slip Op 50425(U))The insurer proved IME nonappearances and timely denials for all but one claim, as to which receipt remained disputed.
- MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))The insurer failed to establish timely denial after alleged EUO nonappearances, and the provider failed to establish entitlement to summary judgment.