November 13, 2015
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51667(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-praetorian-ins-co-2015-ny-slip-op51667u/
- Decided
- November 13, 2015
- Citation
- 2015 NY Slip Op 51667(U) · 49 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 1 later decision (see Cited by)
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 51667(U))
| Compas Med., P.C. v Praetorian Ins. Co. |
| 2015 NY Slip Op 51667(U) [49 Misc 3d 145(A)] |
| Decided on November 13, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-695 Q C
against
Praetorian Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 14, 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 the branch of plaintiff’s motion seeking summary judgment upon its third cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action is denied, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees with respect to this cause of action; as so modified, the order 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. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Contrary to plaintiff’s contention, defendant established that the independent medical examination (IME) and examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), 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 first, second, and fourth through eighth causes of action on these grounds. 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 in opposition to defendant’s cross motion, defendant was entitled to summary judgment dismissing these causes of action.
However, with respect to the third cause of action, the record establishes that the claim at issue was not denied within 30 days of its receipt (see 11 NYCRR 65-3.8 [a] [1]) and defendant did not demonstrate that the 30-day claim determination period (see 11 NYCRR 65-3.8) had been tolled. As a result, since defendant is precluded from asserting, with respect to this claim, its defense that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), plaintiff is entitled to summary judgment upon its third cause of action.
Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon its third cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action is denied, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees with respect to this cause of action pursuant to Insurance Law § 5106 (a) and the [*2]regulations promulgated thereunder.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 13, 2015
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 precluded from asserting the IME/EUO no-show defense for one claim because that claim was not denied within 30 days and no toll was shown; the other claims were timely denied.
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.
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 established timely mailing of the IME and EUO scheduling letters and the assignor's nonappearances, though one claim was lost because its denial was untimely.
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.
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 (rules on the question, but another ground decided the case)
Held the insurer established timely mailing of the IME and EUO scheduling letters and timely denial of most claims, while the remaining claim failed on undisputed denial timing.
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.
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.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Cited by
A label shows how the later decision treated this one.
- Golden Needle Acupuncture P.C. v MAPFRE Ins. Co. (2016 NY Slip Op 26411) FollowedThe insurer's recorded-statement requests and nonspecific delay letters did not toll the 30-day period to pay or deny claims.
Similar decisions
- Compas Med., P.C. v Geico Ins. Co. (2015 NY Slip Op 51590(U))The insurer's conclusory IME nonappearance proof and the provider's deficient prima facie showing defeated both motions on the third cause of action.
- Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.
- 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.
- 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 Med., P.C. v Hartford Ins. Co. (2015 NY Slip Op 50784(U))The provider obtained summary judgment on the fourth, fifth and tenth causes of action because the insurer failed to deny those claims timely.