July 1, 2013
SS Med. Care, P.C. v Nationwide Ins. (2013 NY Slip Op 51109(U))
https://www.beynensonlaw.com/case-law/ss-med-care-p-c-v-nationwide-ins-2013-ny-slip-op-51109u/
- Decided
- July 1, 2013
- Citation
- 2013 NY Slip Op 51109(U) · 40 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- Proof of mailing · No-show defense: insurer's proof (see the maps)
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 SS Med. Care, P.C. v Nationwide Ins. (2013 NY Slip Op 51109(U))
| SS Med. Care, P.C. v Nationwide Ins. |
| 2013 NY Slip Op 51109(U) [40 Misc 3d 129(A)] |
| Decided on July 1, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-3106 K C.
against
SS Medical Care, P.C. as Assignee of CHARAE HATWOOD, Appellant, — Nationwide Ins., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 2, 2011. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the second, third, fourth and fifth causes of action.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing the second, third, fourth and fifth causes of action are denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the second, third, fourth and fifth causes of action. Defendant denied the claims at issue on the ground that plaintiff’s assignor had failed to attend scheduled examinations under oath (EUOs) and independent medical examinations (IMEs).
In order for defendant to make a prima facie showing of its entitlement to summary [*2]judgment based on plaintiff’s assignor’s failure to appear at scheduled EUOs and IMEs, defendant had to demonstrate that its initial and follow-up letters scheduling the EUOs and IMEs had been timely mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and that the assignor had failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
In support of its motion, defendant submitted, among other things, EUO scheduling letters mailed to plaintiff’s assignor at three different addresses. Defendant, however, did not establish that it had mailed follow-up scheduling letters (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]) after the assignor had failed to appear for the initially scheduled EUOs. With respect to defendant’s request that the assignor attend IMEs, defendant submitted an affidavit of an employee of a company which was contracted to schedule medical examinations on defendant’s behalf. The employee attested that it was her company’s standard practice to mail a scheduling letter to the injured party at the address provided by the insurance carrier, as shown on the NF-2 verification of treatment form. Although the NF-2 form, which defendant annexed as an exhibit to its motion, provided an address in Port Jefferson Station, New York, the employee stated that IME scheduling letters and follow-up letters had, in fact, been mailed to the assignor at two different addresses in the Bronx. As a result, defendant’s submissions were insufficient to establish that the requests for EUOs and IMEs had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2006]).
Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing the second, third, fourth and fifth causes of action of the complaint are denied. In view of the foregoing, we do not reach plaintiff’s remaining contentions.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 2013
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer failed to prove proper addressing and mailing because the scheduler's practice was to use the NF-2 address, yet the IME letters went to two Bronx addresses different from it, and EUO follow-ups were not shown mailed.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (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 failed to prove the scheduling letters were mailed or properly addressed
Denied the insurer summary judgment because it did not show mailing of EUO follow-up letters after the first nonappearance, and its IME letters went to addresses inconsistent with the NF-2 address its scheduler's practice required.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Star Med. Servs., P.C. v Allstate Ins. Co. (2006 NYSlipOp 50344(U))The insurer's misaddressed EUO demand did not toll its denial deadline, and EUO transcripts failed to support its coverage defense.
Similar decisions
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement.
- Ss Med. Care, P.C. v Hartford Ins. Co. (2013 NY Slip Op 51032(U))The insurer established mailing of the EUO scheduling letters and denials, defeating the provider's sole appellate challenge to dismissal.
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51653(U))The insurer proved timely IME notices and denials and the assignor's nonappearance, while the provider failed to raise a factual issue.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations.
- Brooklyn Hgts. Physical Therapy, P.C. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 51712(U))The insurer's proof of timely IME notices and denials and the assignor's nonappearance raised a triable issue on six causes of action.