September 19, 2016
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-allstate-ins-co-2016-ny-slip-op-51356u/
- Decided
- September 19, 2016
- Citation
- 2016 NY Slip Op 51356(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 Allstate Ins. Co. (2016 NY Slip Op 51356(U))
| Compas Med., P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 51356(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| This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-2557 Q C
against
Allstate Insurance Company, 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 was based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath.
Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely 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 dismissing the complaint.
However, contrary to plaintiff’s contention, 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]). As a result, plaintiff’s motion for summary judgment was properly denied.
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer's EUO no-show cross motion failed because its affidavits did not set forth a standard office practice ensuring the denials were timely mailed, so it did not establish entitlement to dismissal.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.
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 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 affidavits did not sufficiently describe a standard office practice ensuring that the denial of claim forms were timely mailed, defeating its EUO no-show 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.
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
- Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51360(U))The insurer failed to establish timely mailing of both EUO scheduling letters through its two affidavits.
- 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.
- Compas Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 50953(U))The insurer's submissions established a presumption that its IME nonappearance denials were timely and properly mailed.
- Compas Med., P.C. v Nationwide Ins. (2014 NY Slip Op 51824(U))The insurer rebutted presumed receipt of one claim, leaving a factual issue, and proved IME and EUO nonappearances on the remaining claims.
- Comprehensive Care Physical Therapy, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50848(U))The insurer failed to establish timely mailing of denials supporting its IME nonappearance and fee schedule defenses.