March 26, 2015

EMC Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50475(U))

https://www.beynensonlaw.com/case-law/emc-health-prods-inc-v-travelers-ins-co-2015-ny-slip-op50475u/

Court: Appellate Term, Second Department
Decided: March 26, 2015
Citation: 2015 NY Slip Op 50475(U) · 47 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Split result
Issues: Provider's prima facie case EUO no-show
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

EMC Health Prods., Inc. v Travelers Ins. Co., 47 Misc 3d 133(A), 2015 NY Slip Op 50475(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.

Both sides failed to establish summary judgment entitlement: the provider's denial proof was deficient, and the insurer did not prove EUO nonappearance. The provider's supporting affidavit did not establish that the claim was not timely denied or that a timely denial was conclusory, vague or legally without merit. Its motion was therefore properly denied under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. The insurer likewise failed to establish, as a matter of law, that the provider missed properly scheduled EUOs. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed, leaving both summary judgment applications denied.

Reported in New York Official Reports at EMC Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50475(U))

[*1]

EMC Health Prods., Inc. v Travelers Ins. Co.

2015 NY Slip Op 50475(U) [47 Misc 3d 133(A)]

Decided on March 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1029 K C

EMC Health Products, INC. as Assignee of OMAYRA PEREZ, Appellant, March 26, 2015
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 9, 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 modified by providing that defendant’s cross 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, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted in support of its motion failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, plaintiff’s motion for summary judgment was properly denied. However, defendant’s cross motion should also have been denied, as defendant failed to establish, as a matter of law, its defense that plaintiff had failed to appear for properly scheduled examinations under oath (see e.g. 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]).

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

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

Decision Date: March 26, 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 affidavit failed to establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit, so its motion was properly denied.

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 failed to establish as a matter of law that the provider did not appear for properly scheduled EUOs, so its cross motion should have been denied.

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

A label shows how this decision treated the case it cites.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
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.
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.

Cited by

Metro Health Prods., Inc. v Nationwide Ins. (2015 NY Slip Op 25203)A declaratory judgment order granting a default motion without declaring the parties' rights does not preclude a no-fault action.

Similar decisions

EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50313(U))A provider's prima facie case does not require proof that supplies were actually delivered to the assignor or identification of who delivered them.
EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U))The insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.
EMC Health Prods., Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51806(U))The insurer's summary judgment cross motion was denied on appeal because medical necessity presented a triable issue of fact.
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.
Healthway Med. Care, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 50733(U))The insurer's EUO requests were nullities because its initial request was sent more than 30 days after receipt of the claims.