November 9, 2015
New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 51632(U))
https://www.beynensonlaw.com/case-law/new-way-med-supply-corp-v-praetorian-ins-co-2015-ny-slip-op-51632u/
- Decided
- November 9, 2015
- Citation
- 2015 NY Slip Op 51632(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 New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 51632(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 (William A. Viscovich, J.), entered March 25, 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 branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action are 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 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. The first, second, third and fifth causes of action were dismissed as premature because plaintiff had failed to provide requested verification. The fourth cause of action was dismissed based on the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).
In support of the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second, third and fifth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (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, second, third and fifth causes of action are 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 these causes of action are 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), [*2]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 fourth cause 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 this cause of action.
Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second, third and fifth causes of action are denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 09, 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, scheduling letters and denials, but the provider's owner's affidavit raised a presumption that the requested verification was mailed and received, creating a triable issue.
Of the 1,384 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 on the fourth cause of action.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (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
Held the insurer showed timely verification and follow-up requests and nonreceipt, but the provider's owner's affidavit raised a presumption the verification was mailed and received, so whether four causes of action were premature was a triable issue.
Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 114 (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 claim underlying the fourth cause of action on the IME/EUO no-show ground, an element of its no-show defense.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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 Praetorian Ins. Co. (2015 NY Slip Op 51699(U))The provider raised a verification dispute on one claim, but the insurer proved IME and EUO nonappearance on five others.
- Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50401(U))The provider proved its first claim, while its verification-mailing affidavit raised a factual issue on whether the second claim was premature.
- New Way Med. Supply Corp. v National Liab. & Fire Ins. Co. (2015 NY Slip Op 50783(U))A no-fault action is premature when the provider has failed to respond to a request for verification.
- New Quality Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51697(U))The insurer proved IME and EUO nonappearance on six claims, while medical necessity remained disputed on two others.
- New Way Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 50370(U))The insurer established timely mailing of EUO scheduling letters and the assignor's failure to attend the duly scheduled EUOs. The provider appealed dismissal of its action for assigned first-party no-fault benefits, challenging the insurer's showing.