July 8, 2008
Vista Surgical Supplies, Inc. v Autoone Ins. Co. (2008 NY Slip Op 51460(U))
https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-autoone-ins-co-2008-ny-slip-op51460u/
- Decided
- July 8, 2008
- Citation
- 2008 NY Slip Op 51460(U) · 20 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 1 later decision (see Cited by)
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 Vista Surgical Supplies, Inc. v Autoone Ins. Co. (2008 NY Slip Op 51460(U))
| Vista Surgical Supplies, Inc. v Autoone Ins. Co. |
| 2008 NY Slip Op 51460(U) [20 Misc 3d 133(A)] |
| Decided on July 8, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-1423 K C. NO. 2007-1423 K C
against
Autoone Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered August 10, 2007. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Order modified by providing that defendant’s cross motion for summary judgment is denied with respect to plaintiff’s $766.57 claim; as so modified, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits on claims for $350 and $766.57, plaintiff moved for summary judgment. Defendant cross-moved, inter alia, for summary judgment dismissing the complaint on the ground that plaintiff failed to provide the verification which defendant had requested. The court below denied plaintiff’s motion and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.
The affidavits submitted in support of defendant’s cross motion seeking summary judgment were sufficient to establish that the letters requesting verification and scheduling independent medical examinations (IMEs) of plaintiff’s assignor were timely sent pursuant to a standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Inasmuch as plaintiff did not demonstrate that it provided defendant with the verification requested by defendant in its verification and follow-up verification requests with respect to plaintiff’s claim form seeking the sum of $350, the court properly granted defendant summary judgment dismissing the $350 claim as premature, since it was not overdue (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).
However, defendant was not entitled to summary judgment dismissing plaintiff’s $766.57 [*2]claim. Although defendant’s cross motion for summary judgment dismissing said claim was based upon the failure of plaintiff’s assignor to appear for two IMEs, defendant failed to proffer proof from someone with personal knowledge of the assignor’s failure to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing said claim (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Plaintiff’s remaining contentions lack merit.
Rios and Steinhardt, JJ., concur.
Golia, J.P., concurs in a separate memorandum.
Golia, J.P., concurs in the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish
to note that I am constrained to agree with certain propositions of law set forth in cases cited
therein which are inconsistent with my prior expressed positions and generally contrary to my
views.
Decision Date: July 8, 2008
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.
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 nonappearance by someone with personal knowledge
Denied summary judgment on one claim because the insurer offered no proof from anyone with personal knowledge of the assignor's failure to appear for the two IMEs.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Timely requests went unanswered; the claim is not overdue and the action is premature
Held the $350 claim premature because the insurer proved timely verification and follow-up requests and the provider did not show it supplied the requested verification, so the claim was not overdue.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the insurer's affidavits sufficient to establish that the verification requests and IME scheduling letters were timely sent under a standard office practice designed to ensure proper addressing and mailing.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
Cited by
A label shows how the later decision treated this one.
- LDE Med. Servs., P.C. v Interboro Ins. Co. (2011 NY Slip Op 50946(U)) FollowedThe insurer failed to submit admissible proof of IME nonappearance with its cross motion, and proof first offered in reply was improper.
- Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51954(U))The insurer failed to raise a triable issue on its IME nonappearance defense because it lacked admissible proof from a person with knowledge.
Similar decisions
- Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 51556(U))The provider failed to establish claim submission because its mailing proof did not connect the claims to the certified mail receipt.
- Vista Surgical Supplies, Inc. v General Assur. Co. (2006 NY Slip Op 51034(U))The provider's action was premature because timely verification requests remained unanswered when the action began.
- Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2009 NY Slip Op 52500(U))The insurer's claims specialist affidavit sufficiently established mailing of the verification requests supporting dismissal as premature.
- Vista Surgical Supplies, Inc. v New York Cent. Ins. Co. (2007 NY Slip Op 50165(U))The insurer's examiner affidavit failed to establish mailing of pre-claim IME notices or the assignor's alleged nonappearances.
- Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 51031(U))The insurer's inconsistent affidavit about claim receipt and disputed peer review signatures defeated summary judgment on medical necessity.