December 19, 2014
XVV, Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51862(U))
https://www.beynensonlaw.com/case-law/xvv-inc-v-praetorian-ins-co-2014-ny-slip-op-51862u/
- Decided
- December 19, 2014
- Citation
- 2014 NY Slip Op 51862(U) · 46 Misc 3d 134(A)
- 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 XVV, Inc. v Praetorian Ins. Co. (2014 NY Slip Op 51862(U))
| XVV, Inc. v Praetorian Ins. Co. |
| 2014 NY Slip Op 51862(U) [46 Misc 3d 134(A)] |
| Decided on December 19, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1815 K C
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered June 6, 2012. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is granted; 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 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) and independent medical examinations (IMEs). The Civil Court denied the motion and cross motion, and held that the only remaining issue for trial was defendant’s defense that plaintiff’s assignor had failed to appear for EUOs.
With respect to the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action, defendant established that IME and EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. [*2]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 IMEs and 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 conditions precedent to coverage 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 claim on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs and EUOs, the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action should have been granted.
However, the Civil Court properly denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action, as defendant failed to establish, as a matter of law, that it had timely denied this claim.
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 19, 2014
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 no-show defense established for the first claim, which was timely denied, but not for the second, because the insurer failed to establish as a matter of law that it timely denied that claim.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (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 nonappearance at the duly scheduled IMEs and EUOs.
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 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 the first claim.
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
- XVV, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50312(U))The insurer failed to establish timely mailing of the IME scheduling letters and therefore did not prove that the IMEs were properly scheduled.
- XVV, Inc. v Interboro Ins. Co. (2017 NY Slip Op 51468(U))The insurer failed to show that it had requested the assignor's affidavit from the provider, defeating its prematurity defense.
- Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51776(U))The provider raised a factual issue on verification, but the insurer proved IME nonappearance warranting dismissal of the remaining claims.
- Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U))The insurer's attorney established mailing of EUO notices and the assignor's nonappearance; transcripts concerning another assignor raised no issue.
- Delta Diagnostic Radiology, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51676(U))The insurer failed to prove EUO or IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment.