May 19, 2015
New Way Med. Supply Corp. v American Tr. Ins. Co. (2015 NY Slip Op 50809(U))
https://www.beynensonlaw.com/case-law/new-way-med-supply-corp-v-american-tr-ins-co-2015-ny-slip-op50809u/
- Decided
- May 19, 2015
- Citation
- 2015 NY Slip Op 50809(U) · 47 Misc 3d 153(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 American Tr. Ins. Co. (2015 NY Slip Op 50809(U))
| New Way Med. Supply Corp. v American Tr. Ins. Co. |
| 2015 NY Slip Op 50809(U) [47 Misc 3d 153(A)] |
| Decided on May 19, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-103 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered November 14, 2012. 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 affirmed, with $25 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 on the ground that it had timely and properly denied the claims based on plaintiff’s assignor’s failure to appear for examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Contrary to plaintiff’s contention, defendant established that EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, defendant was entitled to summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 19, 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.
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
Rejected the provider's contention and held the insurer proved timely mailing of the EUO scheduling letters and the assignor's failure to appear.
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.
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 entitled to dismissal because it showed the EUO no-show and that it timely denied the claims on that ground.
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.
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 EUO scheduling letters and timely denial of the claims under the standard-office-practice test.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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
- New Way Med. Supply Corp. v Company (2015 NY Slip Op 51461(U))The insurer established timely mailing of IME notices and denials and the assignor's failure to attend the scheduled IMEs. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
- Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51592(U))The insurer established timely EUO notices and denial and the assignor's failure to appear, warranting dismissal of the claim.
- New Way Med. Supply Corp. v Praetorian Ins. Co. (2015 NY Slip Op 50780(U))The insurer established timely mailing of chiropractic IME notices and denials and the assignor's failure to attend the scheduled IMEs. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., that failure violated a condition precedent to coverage and entitled the insurer to summary judgment dismissing the assigned no-fault claims.
- Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51711(U))The insurer established timely mailing of EUO notices, the assignor's nonappearance and timely denials based on that nonappearance.
- Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51671(U))The insurer proved timely mailing of EUO notices and denials and the assignor's nonappearance, supporting dismissal of the disputed claims.