December 21, 2012
Parsons Med. Supply, Inc. v Utica Mut. Ins. Co. (2012 NY Slip Op 52397(U))
https://www.beynensonlaw.com/case-law/parsons-med-supply-inc-v-utica-mut-ins-co-2012-ny-slip-op52397u/
- Decided
- December 21, 2012
- Citation
- 2012 NY Slip Op 52397(U) · 38 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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 Parsons Med. Supply, Inc. v Utica Mut. Ins. Co. (2012 NY Slip Op 52397(U))
| Parsons Med. Supply, Inc. v Utica Mut. Ins. Co. |
| 2012 NY Slip Op 52397(U) [38 Misc 3d 129(A)] |
| Decided on December 21, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2010-1537 K C.
against
Utica Mutual Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 16, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that 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, defendant was required, but failed, to demonstrate that its initial and follow-up requests for examinations under oath (EUOs) of plaintiff had been timely sent (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Since defendant failed to establish that it had tolled its time to pay or deny plaintiff’s claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff’s principal failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant is not entitled to summary judgment dismissing the complaint (see NYU-Hosp. for Joint Diseases v American [*2]Intl. Group, Inc., 89 AD3d 702 [2011]; Westchester Med. Ctr., 60 AD3d 1045).
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012
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 insurer failed to show it was not precluded from its EUO no-show defense because, without proof of timely initial and follow-up EUO requests, it did not establish that its time to pay or deny was tolled.
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 proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer failed to demonstrate that its initial and follow-up EUO requests had been timely sent, so it did not establish that its time to deny was tolled or that its EUO no-show defense was not precluded.
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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held the insurer failed to demonstrate that its initial and follow-up EUO requests were timely sent under the regulations, so the no-show defense could not support summary judgment.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Similar decisions
- Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co. (2012 NY Slip Op 51649(U))An insurer's delay letters requesting no verification do not toll the 30-day period to pay or deny a no-fault claim.
- Art of Healing Medicine, P.C. v Utica Mut. Ins. Co. (2016 NY Slip Op 51610(U))The insurer established timely mailing of EUO notices and denials and the assignor's nonappearance; the medical-necessity challenge was unpreserved.
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.
- Union Physician Healthcare, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 50039(U))The provider failed to establish entitlement to summary judgment because its officer's affidavit lacked a business-record foundation.
- Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. (2014 NY Slip Op 50421(U))An assignor's appearance at an EUO is a condition precedent to the insurer's liability under the policy.