December 19, 2014

Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))

https://www.beynensonlaw.com/case-law/flatlands-med-p-c-v-travelers-ins-co-2014-ny-slip-op51856u/

Court
Appellate Term, Second Department
Decided
December 19, 2014
Citation
2014 NY Slip Op 51856(U) · 46 Misc 3d 133(A)
Posture
Summary judgment
Outcome
Split result
Issues
Timeliness and preclusion EUO no-show Verification requests
Legal questions
Proof of mailing · No-show defense: insurer's proof (see the maps)
Cite as
Flatlands Med., P.C. v Travelers Ins. Co., 46 Misc 3d 133(A), 2014 NY Slip Op 51856(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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.

The insurer failed to establish timely denials for seven claims but proved timely mailing of EUO notices and denials for two others. The Appellate Term, Second Department, modified the order to deny summary judgment dismissing the provider's first through seventh causes of action and affirmed dismissal of the eighth and ninth. The first six claims were denied well beyond 30 days, and the insurer did not establish proper tolling under 11 NYCRR 65-3.5 (b). The insurer conceded that its denial of the seventh claim was untimely. For the eighth and ninth claims, its affidavits sufficiently established timely mailing of EUO scheduling letters and denial forms; the provider raised no other appellate issue concerning those claims.

Reported in New York Official Reports at Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))

[*1]
Flatlands Med., P.C. v Travelers Ins. Co.
2014 NY Slip Op 51856(U) [46 Misc 3d 133(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This opinion is uncorrected and will not be published in the printed Official Reports.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.
2012-891 K C
Flatlands Medical, P.C. as Assignee of CLEVIE GALL, Appellant, –

against

Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered February 7, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through seventh 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 appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint.

It is undisputed that the claims underlying plaintiff’s first through sixth causes of action were denied well over 30 days after they had been received by defendant. Plaintiff correctly argues on appeal that defendant failed to establish, as a matter of law, that it had properly tolled its time to pay or deny these claims (see 11 NYCRR 65—3.5 [b]). Consequently, defendant was not entitled to summary judgment dismissing these causes of action.

As to plaintiff’s seventh cause of action, defendant concedes on appeal that it untimely denied the claim upon which that cause of action is based and that, therefore, it is not entitled to [*2]summary judgment on this cause of action.

Finally, as to plaintiff’s eighth and ninth causes of action, contrary to plaintiff’s argument on appeal, the affidavits submitted by defendant were sufficient to demonstrate that the examination under oath scheduling letters and the denial of claim forms 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]). As plaintiff raises no other issue on appeal with respect to these claims, plaintiff has shown no basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing these causes of action.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through seventh causes of action are denied.

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


Decision Date: December 19, 2014

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