December 23, 2011
Arco Med. NY, P.C. v Lancer Ins. Co. (2011 NY Slip Op 52383(U))
https://www.beynensonlaw.com/case-law/arco-med-ny-p-c-v-lancer-ins-co-2011-ny-slip-op-52383u/
- Decided
- December 23, 2011
- Citation
- 2011 NY Slip Op 52383(U) · 34 Misc 3d 134(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 Arco Med. NY, P.C. v Lancer Ins. Co. (2011 NY Slip Op 52383(U))
| Arco Med. NY, P.C. v Lancer Ins. Co. |
| 2011 NY Slip Op 52383(U) [34 Misc 3d 134(A)] |
| Decided on December 23, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-2203 K C.
against
Lancer Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009. The order denied defendant’s motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff’s principals, for depositions, and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion on the ground that it had timely denied plaintiff’s claims after Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion.
Since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). [*2]
Defendant demonstrated that it had properly requested that plaintiff’s principals appear for an EUO, that they failed to appear for scheduled EUOs and that defendant issued a denial of claim form on April 11, 2007, within 30 days after their failure to appear (see Arco Med. NY, P.C. as Assignee of Isardat Jewdhan v Lancer Ins. Co., __ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-2201 K C], decided herewith). However, the claims at issue in this case were submitted to defendant after it had issued that denial of claim form, and, thus, the April 11, 2007 denial is ineffective as to these claims (cf. Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant attached denial of claim forms to its opposition to plaintiff’s cross motion which purport to address the claims at issue here, and which appear timely on their face, but defendant failed to submit evidence that it had mailed them. Since defendant failed to prove that it had timely denied the claims at issue, it is precluded from asserting most defenses, including its proffered defense that plaintiff failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2011], lv denied 17 NY3d 705 [2011]). Furthermore, defendant is not entitled to the depositions of Dr. Mayard and Dr. Berardi, as it only sought the depositions in order to obtain information regarding “treatment” and plaintiff’s “billing practices,” defenses which we find to be precluded (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]; see also Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant’s motion was properly denied and plaintiff’s cross motion for summary judgment was properly granted.
Weston, J.P., and Rios, J., concur.
Golia, J., taking no part.
Decision Date: December 23, 2011
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 precluded from its EUO no-show defense because its earlier denial predated the claims at issue and it did not prove mailing of the later denials, rejecting treatment of the no-show as a non-precludable coverage defense.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
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 submitted no evidence that it mailed the denial forms addressing the claims at issue, although they appeared timely on their face, so it failed to prove timely denial.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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)
Found the insurer properly requested the principals' EUOs and showed they failed to appear, but the defense failed on the denial.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 01458) Contrasted (cf., but see)The insurer's defective denial and insufficient mailing proof precluded its intoxication exclusion defense.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) Contrasted (cf., but see)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- 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.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
- A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2006 NY Slip Op 26068) FollowedA defense of fraudulent corporate licensure is not precluded by an insurer's failure to timely deny no-fault claims.
- Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946)An insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
- Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co. (2007 NY Slip Op 27088)The insurer failed to prove timely mailing of its denials and was precluded from asserting lack of medical necessity on three claims.
Similar decisions
- ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U))A follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
- Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co. (2013 NY Slip Op 52001(U))The insurer established its EUO nonappearance defense to four claims but left the provider's awards on two other claims unchallenged.
- A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
- Corona Hgts. Med., P.C. v Lancer Ins. Co. (2011 NY Slip Op 51293(U))The insurer established timely mailing of EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The motion papers demonstrated mailing through the standard office practices of the law firm conducting the EUOs and the insurer's own denial-mailing procedures.
- ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50184(U))The insurer failed to prove mailing of IME notices, and the providers' billing affidavit addressed claims in another action.