February 19, 2013

Infinity Health Prods., Ltd. v Travelers Ins. Co. (2013 NY Slip Op 50253(U))

https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-travelers-ins-co-2013-ny-slip-op50253u/

Court
Appellate Term, Second Department
Decided
February 19, 2013
Citation
2013 NY Slip Op 50253(U) · 38 Misc 3d 142(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
EUO no-show
Legal questions
No-show defense: insurer's proof · No-show: coverage defense or precludable? · Proof of mailing (see the maps)
Cite as
Infinity Health Prods., Ltd. v Travelers Ins. Co., 38 Misc 3d 142(A), 2013 NY Slip Op 50253(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 properly denied the third bill based on two prior EUO nonappearances without issuing new scheduling letters for that bill. Civil Court dismissed claims on the first two bills but awarded the provider summary judgment on the third because no two scheduling letters addressed its service date. The insurer denied the third bill within 30 days of receipt under 11 NYCRR 65-3.8 (a), relying on the provider's failure to attend two previously, properly scheduled EUOs. That failure breached a condition precedent to coverage, and new scheduling letters were unnecessary. The Appellate Term, Second Department, reversed the judgment, denied the provider's motion branch concerning the third bill, and granted the insurer's corresponding cross-motion branch dismissing that claim.

Reported in New York Official Reports at Infinity Health Prods., Ltd. v Travelers Ins. Co. (2013 NY Slip Op 50253(U))

[*1]
Infinity Health Prods., Ltd. v Travelers Ins. Co.
2013 NY Slip Op 50253(U) [38 Misc 3d 142(A)]
Decided on February 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 19, 2013

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


PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-863 Q C.
Infinity Health Products, Ltd. as Assignee of JESUS ENCARNACION, Respondent, —

against

Travelers Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 17, 2011, deemed from a judgment of the same court entered March 1, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the February 17, 2011 order as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint, awarded plaintiff the principal sum of $501.50.

ORDERED that the judgment is reversed, with $30 costs, so much of the February 17, 2011 order as granted the branch of plaintiff’s motion seeking summary
judgment on so much of the complaint as sought to recover upon the bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is denied, and that branch of defendant’s cross motion is granted.

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 [*2]complaint on the ground that all three bills at issue had been timely and properly denied based on plaintiff’s failure to appear for scheduled examinations under oath (EUOs) on September 4, 2009 and September 23, 2009. The Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s first two bills, implicitly finding that defendant had proved that the EUOs had been properly scheduled and that plaintiff had failed to appear. However, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon the last bill, for $501.50, on the ground that defendant had failed to issue two scheduling letters addressing the date of service for that bill.

The claim for $501.50 was denied by defendant within 30 days of its receipt (see Insurance Department Regulations [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]) on the ground that plaintiff had failed to appear for the two properly scheduled EUOs that had been previously requested by defendant with regard to the same accident and the same assignor. Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, this claim was timely and properly denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Contrary to the finding of the Civil Court, it was not necessary for defendant to issue new scheduling letters addressing this particular bill (id.).

Accordingly, the judgment is reversed, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s is denied, and that branch of defendant’s cross motion is granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013

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