December 17, 2014
Utopia Equip., Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51820(U))
https://www.beynensonlaw.com/case-law/utopia-equip-inc-v-ny-cent-mut-fire-ins-co-2014-ny-slip-op51820u/
- Decided
- December 17, 2014
- Citation
- 2014 NY Slip Op 51820(U) · 46 Misc 3d 131(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 Utopia Equip., Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51820(U))
| Utopia Equip., Inc. v NY Cent. Mut. Fire Ins. Co. |
| 2014 NY Slip Op 51820(U) [46 Misc 3d 131(A)] |
| Decided on December 17, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1517 K C
against
NY Central Mutual Fire Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered May 17, 2012. The order denied 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 so much of the complaint as sought to recover on claims for $837.63 and $1,193.50 are granted; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
In support of its motion for summary judgment, defendant established, with respect to claims for $837.63 and $1,193.50, that the denial of claim forms had been timely mailed (see 11 NYCRR 65-3.8 [a]; see also 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 the claims had been denied on the ground that plaintiff had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant also submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant further submitted an affidavit by the healthcare professional who was to perform the IMEs, which affidavit established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (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, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.
To the extent defendant’s motion sought summary judgment dismissing the complaint with respect to claims for $515 and $199.35, defendant failed to establish, as a matter of law, that these claims had been timely denied (see 11 NYCRR 65-3.8 [l]).
Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $837.63 and $1,193.50 are granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 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 IME no-show defense established for two timely denied claims but not for two others, which the insurer failed to show were timely denied.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (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 scheduling letters through the scheduler's standard practice affidavit and timely mailing of the denials for two claims.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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 (rules on the question, but another ground decided the case)
Held the scheduler's affidavit proved timely mailing of the IME letters under standard practice and the examining professional's affidavit proved the assignor's nonappearance.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50472(U))An insurer's IME nonappearance defense is subject to preclusion if the insurer fails to timely deny the claims.
- Utopia Equip., Inc. v ELRAC, Inc. (2017 NY Slip Op 50949(U))IME notices from a third party adequately identified the claims processor, and the doctor's affirmation proved nonappearance.
- Utopia Equip., Inc. v Maya Assur. Co. (2016 NY Slip Op 50463(U))The provider's renewal motion failed because a later decision did not constitute a change in law altering the prior determination.
- Utopia Equip. Inc. v Chubb Indem. Ins. Co. (2017 NY Slip Op 50540(U))The insurer failed to prove that the provider submitted its no-fault claims beyond the applicable 45-day limit.
- Village Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50631(U))The insurer established timely IME notices and the assignor's nonappearance, defeating the provider's claims.