October 30, 2015

Village Med. Supply, Inc. v Travco Ins. Co. (2015 NY Slip Op 51599(U))

https://www.beynensonlaw.com/case-law/village-med-supply-inc-v-travco-ins-co-2015-ny-slip-op51599u/

Court: Appellate Term, Second Department
Decided: October 30, 2015
Citation: 2015 NY Slip Op 51599(U) · 49 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Split result
Issues: EUO no-show Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

Village Med. Supply, Inc. v Travco Ins. Co., 49 Misc 3d 141(A), 2015 NY Slip Op 51599(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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.

Neither side established entitlement to summary judgment on the provider's alleged failure to appear for EUOs. The insurer relied on an affirmation from the attorney assigned to conduct the EUOs, but its papers did not unequivocally show that the attorney was present on the scheduled dates. Without proof from someone with personal knowledge of the provider's nonappearances, the insurer was not entitled to dismissal. The provider likewise failed to show that it appeared for either EUO, defeating its cross motion. The Appellate Term, Second Department, modified the order to deny the insurer's motion for summary judgment dismissing the complaint and affirmed the denial of the provider's cross motion.

Reported in New York Official Reports at Village Med. Supply, Inc. v Travco Ins. Co. (2015 NY Slip Op 51599(U))

[*1]

Village Med. Supply, Inc. v Travco Ins. Co.

2015 NY Slip Op 51599(U) [49 Misc 3d 141(A)]

Decided on October 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1410 K C

Village Medical Supply, Inc. as Assignee of Paola Dossa, Appellant,
against
Travco Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (William A. Viscovich, J.), entered May 2, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

In support of its motion, defendant submitted an affirmation executed by the attorney who was assigned to conduct the EUOs of plaintiff to establish that plaintiff had failed to appear. However, as plaintiff notes, defendant’s motion papers do not unequivocally demonstrate that defendant’s counsel was present on the dates of the scheduled EUOs. As a result, defendant’s motion should have been denied because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Since plaintiff failed to show that it had appeared for either of the EUOs, plaintiff’s cross motion for summary judgment was properly denied (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, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 30, 2015

Legal questions (2)

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.

Claimant's prima facie case on motions

Open the full map

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 cross motion properly denied because it failed to show that it had appeared for either EUO, so it did not show the insurer's no-show denial was without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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.

No-show defense: insurer's proof

Open the full map

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 nonappearance by someone with personal knowledge

Held the insurer's motion should have been denied because the attorney's affirmation did not unequivocally show that counsel was present on the scheduled EUO dates, so no one with personal knowledge proved the nonappearance.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Cited in this decision

Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))An insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The 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))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Village Med. Supply, Inc. v Hereford Ins. Co. (2018 NY Slip Op 51014(U))The insurer established the assignor's EUO nonappearances through an employee affidavit demonstrating personal knowledge.
Compas Med., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51568(U))The insurer's attorney failed to establish the provider's nonappearance at both scheduled EUOs through personal knowledge or other proper proof.
EMC Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50475(U))Both sides failed to establish summary judgment entitlement: the provider's denial proof was deficient, and the insurer did not prove EUO nonappearance.
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.
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50767(U))The insurer's motion for summary judgment dismissing the provider's complaint based on EUO nonappearance was granted.