November 19, 2015
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51699(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-praetorian-ins-co-2015-ny-slip-op51699u/
- Decided
- November 19, 2015
- Citation
- 2015 NY Slip Op 51699(U)
- 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 Praetorian Ins. Co. (2015 NY Slip Op 51699(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Praetorian Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 19, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first through sixth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing these causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered March 19, 2013, insofar as appealed from, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first through sixth causes of action, granted the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action as premature because plaintiff had failed to provide requested verification, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the second through sixth causes of action due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).
In support of the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s first cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).
Contrary to plaintiff’s contention, defendant established that the IME and EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims underlying the second through sixth causes of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing these causes of action.
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 19, 2015
Legal questions (4)
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: Different mailing results for different documents or claims in one decision
Held the insurer proved timely mailing of its verification requests, IME/EUO scheduling letters and denials, defeating five causes of action. The provider owner's affidavit, however, raised a presumption that its verification response was mailed and received, leaving a triable issue on one claim.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 55 (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 proved timely mailing of the IME and EUO scheduling letters and the assignor's nonappearance, and the provider raised no triable issue.
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)
Held the insurer established that it timely denied the claims on the IME/EUO no-show ground, one of the elements entitling it to summary judgment on the second through sixth causes of action.
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.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Fact issues remain on whether the verification defense applies (rules on the question, but another ground decided the case)
Held the insurer showed timely verification and follow-up requests and nonreceipt, but the provider's owner's affidavit gave rise to a presumption of mailing and receipt, raising a triable issue whether the first cause of action was premature.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 114 (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.
- Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) FollowedAn insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
- Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 24145) FollowedThe provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests.
- 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
- Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51433(U))The provider's mailing affidavit raised a triable issue whether requested verification had been received for two claims.
- New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 51632(U))The provider raised factual issues over verification receipt on four causes of action, but the insurer proved nonappearance on the fourth claim.
- Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))The insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.
- Compas Med., P.C. v Farmington Cas. Co. (2016 NY Slip Op 50925(U))The insurer established outstanding verification for one claim and timely mailing of IME nonappearance denials for the remaining claims.
- 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.