September 19, 2016
Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51360(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-american-tr-ins-co-2016-ny-slip-op51360u/
- Decided
- September 19, 2016
- Citation
- 2016 NY Slip Op 51360(U) · 53 Misc 3d 129(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 Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51360(U))
| Compas Med., P.C. v American Tr. Ins. Co. |
| 2016 NY Slip Op 51360(U) [53 Misc 3d 129(A)] |
| Decided on September 19, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2591 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 18, 2013. 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.
Defendant’s cross motion for summary judgment was predicated upon the defense that defendant had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). In order to prove that the EUO letters had been timely mailed, defendant submitted two affidavits, each describing a portion of defendant’s practices and procedures. While the affidavit that describes defendant’s mail room practices and procedures alleges that defendant mailed EUO scheduling letters on October 1, 2010 and October 29, 2010, the other affidavit, which alleges, based upon a combination of personal knowledge and practices and procedures, that a scheduling letter was prepared for mailing on October 29, 2010, does not even mention the October 1, 2010 letter. Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.
Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit. Plaintiff’s moving papers failed to establish that the claims 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 denials of claim 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 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.
Decision Date: September 19, 2016
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's papers failed to establish that the claims had not been timely denied or that timely denials were conclusory, vague or without merit.
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 did not prove mailing of the EUO letters because its two practice affidavits were inconsistent, one omitting the first letter the other said was mailed.
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
Held the insurer failed to prove timely mailing of the EUO scheduling letters because its two affidavits conflicted on which letters were mailed, so it was not entitled to summary judgment.
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.
- 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
- Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
- Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51667(U))The insurer's untimely denial precluded its EUO and IME nonappearance defenses to the third cause of action.
- Compas Med., P.C. v Farm Family Cas. Ins. Co. (2013 NY Slip Op 50254(U))The insurer's untimely denials precluded its EUO nonappearance defense to eight claims, and its denial of receipt did not defeat two others.
- Compas v Travelers Ins. Co. (2018 NY Slip Op 50821(U))The insurer established the provider's EUO nonappearances through an affirmation from the attorney present to conduct the EUOs. The provider challenged the sufficiency of the affirmation in its action for assigned no-fault benefits.
- Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51417(U))The insurer established proper mailing of verification requests and denials and timely denial after receipt of verification.