June 29, 2009
Careplus Med. Supply, Inc. v AutoOne Ins. Co. (2009 NY Slip Op 51372(U))
https://www.beynensonlaw.com/case-law/careplus-med-supply-inc-v-autoone-ins-co-2009-ny-slip-op51372u/
- Decided
- June 29, 2009
- Citation
- 2009 NY Slip Op 51372(U) · 24 Misc 3d 132(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 Careplus Med. Supply, Inc. v AutoOne Ins. Co. (2009 NY Slip Op 51372(U))
| Careplus Med. Supply, Inc. v AutoOne Ins. Co. |
| 2009 NY Slip Op 51372(U) [24 Misc 3d 132(A)] |
| Decided on June 29, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ
2008-1160 N C.
against
AutoOne Insurance Company f/k/a GENERAL ASSURANCE COMPANY, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (David Goodsell, J.), dated April 17, 2008. The order, insofar as appealed from, denied so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094.
Order, insofar as appealed from, reversed without costs, so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094 granted and matter remanded to the District Court for a calculation of statutory interest and an assessment of attorney’s fees due thereon.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, supporting the motion with an affirmation from plaintiff’s counsel, an affidavit from plaintiff’s president and medical biller, and various documents. In opposition to the motion, defendant argued, inter alia, that summary judgment should be denied as to the bills at issue on this appeal because plaintiff’s attempt to recover upon said bills was premature due to the failure of plaintiff’s assignors to appear for properly noticed independent medical examinations (IMEs). In an order dated April 17, 2008, insofar as appealed from, the District Court denied so much of plaintiff’s motion as sought summary judgment upon said bills, on the ground that defendant had established that the assignors had failed to appear for IMEs.
On appeal, defendant asserts that the affidavit submitted by plaintiff’s president and [*2]medical biller was insufficient to establish that the documents annexed to plaintiff’s motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it (see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court’s determination that plaintiff established its prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).
Although defendant denied the bills at issue on the ground that plaintiff’s assignors failed to attend scheduled IMEs, the affidavits submitted by defendant were insufficient to establish proper mailing of the IME scheduling letters, which would give rise to a presumption that the items were received by the addressee (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant failed to establish that plaintiff’s assignors did not appear for IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, defendant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In light of the foregoing, the order, insofar as appealed from, is reversed, so much of
plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094 is
granted and the matter is remanded to the District Court for the
calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant
to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
The decision and order of this court entered herein on June 2, 2009 are hereby recalled and
vacated (see motion decided simultaneously herewith).
Tanenbaum, J.P., and Molia J., concur.
Scheinkman, J., taking no part.
Decision Date: June 29, 2009
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's affidavits insufficient to establish proper mailing of the IME scheduling letters, so no presumption of receipt arose.
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
Held the insurer failed to prove mailing of the IME scheduling letters and also failed to establish the assignors' nonappearance, so it raised no triable issue on its no-show defense.
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.
- Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U)) FollowedAn insurer must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits.
- Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52046(U)) FollowedThe provider recovered on the first claim, but the second was premature because requested assignment verification remained unanswered.
- 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.
- 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
- A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 50583(U))The insurer's affidavits failed to establish mailing of the IME scheduling letters, defeating its IME nonappearance defense.
- Careplus Med. Supply, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50196(U))A provider need not establish claim forms' admissibility under CPLR 4518 as part of its prima facie entitlement to summary judgment.
- Careplus Med. Supply, Inc v Allstate Indem. Co. (2005 NY Slip Op 51527(U))The insurer improperly reduced equipment claims to local prevailing rates under a fee schedule allowing 150 percent of cost.
- Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51525(U))The former medical-equipment fee schedule caps reimbursement at 150 percent of cost and does not use local prevailing rates.
- Careplus Med. Supply Inc. v General Assur. Co. (2005 NY Slip Op 50429(U))The insurer failed to prove mailing of preclaim IME notices to the assignors and was precluded from asserting nonattendance on one late-denied claim.