January 31, 2007
Vista Surgical Supplies, Inc. v New York Cent. Ins. Co. (2007 NY Slip Op 50165(U))
https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-new-york-cent-ins-co-2007-ny-slip-op-50165u/
- Decided
- January 31, 2007
- Citation
- 2007 NY Slip Op 50165(U) · 14 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- 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 Vista Surgical Supplies, Inc. v New York Cent. Ins. Co. (2007 NY Slip Op 50165(U))
| Vista Surgical Supplies, Inc. v New York Cent. Ins. Co. |
| 2007 NY Slip Op 50165(U) [14 Misc 3d 135(A)] |
| Decided on January 31, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., RIOS and BELEN, JJ
2005-1990 K C.
against
New York Central Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered October 13, 2005. The order denied plaintiff’s motion for summary judgment.
Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.
In opposition to plaintiff’s motion, defendant’s no-fault litigation examiner stated that defendant’s denial was based upon plaintiff’s assignor’s nonattendance at independent medical examinations (IMEs), requests for which were made prior to defendant’s receipt of the claim form. As plaintiff correctly asserted, defendant was required to establish by proof in admissible form that the IME notifications were mailed and that plaintiff’s assignor failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]). The record reflects that Allegiance Health was responsible for scheduling the IMEs and for mailing the IME notices. Since defendant’s examiner was not [*2]responsible for the scheduling of IMEs or for the mailing of IME notifications, her affidavit was insufficient to establish proper mailing of the IME request letters or plaintiff’s assignor’s failure to appear for the scheduled IMEs. Accordingly, defendant failed to raise a triable issue of fact.
In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 31, 2007
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 examiner's affidavit insufficient to prove mailing of the IME request letters because the vendor, not the examiner, was responsible for scheduling and mailing the notices.
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 IME no-show defense raised no triable issue because the examiner, who was not responsible for scheduling or mailing IME notices, could prove neither the mailing of the letters nor the assignor's nonappearance.
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.
- 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.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- 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 Allstate Ins. Co. (2006 NY Slip Op 52520(U))The provider failed to prove mailing of its claim, while the insurer established that it had never received the claim.
- Vista Surgical Supplies, Inc. v Statewide Ins. Co. (2006 NY Slip Op 51118(U))The provider failed to establish claim submission because its mailing receipts and the insurer's verification letters were not linked to the claims.
- 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 Autoone Ins. Co. (2008 NY Slip Op 51460(U))The insurer obtained dismissal of an unverified claim as premature but failed to prove IME nonappearance on a separate claim.
- Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))The provider's deficient mailing proof and ambiguous postal documentation left claim submission unresolved, defeating both summary judgment motions.