September 27, 2016

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-national-liab-fire-ins-co-2016-ny-slip-op51423u/

Court: Appellate Term, Second Department
Decided: September 27, 2016
Citation: 2016 NY Slip Op 51423(U) · 53 Misc 3d 134(A)
Posture: Summary judgment
Outcome: Split result
Issues: IME no-show Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co., 53 Misc 3d 134(A), 2016 NY Slip Op 51423(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 establish proper mailing of IME scheduling letters, and the provider failed to establish prima facie entitlement to judgment. The insurer's affidavit did not sufficiently describe a standard office practice or procedure ensuring proper mailing of letters scheduling the assignor's IMEs. The provider's affidavit did not establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit as a matter of law. Neither party was entitled to summary judgment. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed, leaving the denial of the provider's motion in place.

Reported in New York Official Reports at TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))

[*1]

TAM Med. Supply Corp. v National Liab. & Fire Ins. Co.

2016 NY Slip Op 51423(U) [53 Misc 3d 134(A)]

Decided on September 27, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-835 Q C

TAM Medical Supply Corp., as Assignee of JOEL JACQUEZ, Appellant,
against
National Liability & Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered March 20, 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.

Plaintiff correctly argues that the affidavit submitted by defendant in support of its cross motion did not sufficiently set forth a standard office practice or procedure that would ensure that its letters scheduling plaintiff’s assignor for independent medical examinations had been properly 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.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim 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 a timely denial of claim that was 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 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.

Decision Date: September 27, 2016

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.

Claimant's prima facie case on motions

Open the full map

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's affidavit failed to show that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit, so its summary judgment motion was properly denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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 affidavit did not sufficiently describe a standard office practice ensuring that the IME scheduling letters were properly mailed, so its cross motion for summary judgment had to be denied.

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, 257 (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.

Cited by

Masigla v National Liab. & Fire Ins. Co. (2017 NY Slip Op 51847(U))The insurer failed to establish proper mailing of IME scheduling letters and was denied summary judgment on its IME nonappearance defense.
Aminov v National Liab. & Fire Ins. (2022 NY Slip Op 50596(U))A discrepancy between the insurer's affidavit and mailing logs raised a factual issue about proper mailing of its claim denials.

Similar decisions

TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51624(U))The provider's challenge to the IME scheduling letters' inclusion of an apartment number was unpreserved because it was first raised on appeal.
Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U))The insurer established that it first learned of the accident through an NF-2 form submitted more than 30 days after the accident.
TAM Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 51319(U))The insurer established proper mailing of verification requests and nonreceipt of the requested verification, rendering the action premature.
Tam Med. Supply Corp. v Tri State Consumers Ins. Co. (2016 NY Slip Op 51350(U))The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. The provider challenged that proof on appeal from an order denying its motion for summary judgment and granting the insurer's cross motion dismissing the action for assigned no-fault benefits.
Tam Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50914(U))The insurer's summary judgment motion asserting that outstanding verification made the provider's action premature was denied on appeal.