September 22, 2017
Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U))
https://www.beynensonlaw.com/case-law/laga-v-lancer-ins-co-2017-ny-slip-op-51244u/
- Decided
- September 22, 2017
- Citation
- 2017 NY Slip Op 51244(U) · 57 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U))
| Laga v Lancer Ins. Co. |
| 2017 NY Slip Op 51244(U) [57 Misc 3d 133(A)] |
| Decided on September 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 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
2014-1811 Q C
against
Lancer Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered July 1, 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 the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s arguments, defendant’s proof sufficiently established proper mailing of the denials and verification requests at issue (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]). Plaintiff’s remaining argument is improperly raised for the first time on appeal and, in any event, lacks merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 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.
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
Rejected the provider's arguments, holding the insurer's proof sufficiently established proper mailing of the denials and verification requests at issue.
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's proof sufficiently established that the provider failed to appear for the scheduled EUOs, rejecting the provider's arguments.
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.
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 (rules on the question, but another ground decided the case)
Sustained the EUO no-show dismissal after finding the insurer's proof established proper mailing of its denials and verification requests.
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.
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
- Laga v American Commerce Ins. Co. (2017 NY Slip Op 51254(U))The insurer's summary judgment dismissing the second through fourth causes of action for the provider's EUO nonappearance was affirmed.
- RA Med. Servs., P.C. v Lancer Ins. Co. (2022 NY Slip Op 50793(U))The insurer's EUO requests were nullities for the claims at issue because the initial request was sent more than 30 days after receipt.
- Laga v Allstate Ins. Co. (2018 NY Slip Op 50416(U))The insurer failed to establish timely mailing of its denials and therefore did not show that its defenses escaped preclusion.
- Laga v Country Wide Ins. Co. (2017 NY Slip Op 51155(U))The insurer's proof supported a presumption of proper denial mailing, and the provider's remaining challenge was first raised on appeal.
- Corona Hgts. Med., P.C. v Lancer Ins. Co. (2011 NY Slip Op 51293(U))The insurer established timely mailing of EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The motion papers demonstrated mailing through the standard office practices of the law firm conducting the EUOs and the insurer's own denial-mailing procedures.