June 8, 2006
Colonia Med., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51186(U))
https://www.beynensonlaw.com/case-law/colonia-med-p-c-v-travelers-ins-co-2006-ny-slip-op-51186u/
- Decided
- June 8, 2006
- Citation
- 2006 NY Slip Op 51186(U) · 12 Misc 3d 133(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 Colonia Med., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51186(U))
| Colonia Med., P.C. v Travelers Ins. Co. |
| 2006 NY Slip Op 51186(U) [12 Misc 3d 133(A)] |
| Decided on June 8, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1339 N C.
against
Travelers Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Sharon Commissiong, J.), entered June 17, 2005. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 in costs.
Order reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.
In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff provider moved for summary judgment. The court below found that plaintiff demonstrated its entitlement to judgment as a matter of law but denied the motion on the ground that defendant raised triable issues of fact. The instant appeal by plaintiff ensued.
Upon a review of the record, we find that defendant failed to establish that it timely denied plaintiff’s claims based on the assignor’s failure to attend independent medical examinations, since it did not show that the statutory time period within which it had to pay or deny the claims was tolled by timely verification and follow-up requests. The affidavit by defendant’s claims representative did not demonstrate that defendant mailed verification requests. The affiant did not assert personal knowledge of actual mailing or of facts creating a presumption of same (see A.B. Med. Servs. PLLC v Prudential Prop & Cas Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504 [App Term, 2d & 11th Jud Dists]; Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50143[U] [App Term, 9th & 10th Jud Dists]). Since defendant’s denial was untimely, it is precluded from interposing the defenses raised in this case (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, 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 [*2]attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: June 8, 2006
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 IME no-show defense because it did not show its denial was timely, having failed to prove that verification requests tolling the 30-day period were mailed.
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 claims representative's affidavit did not prove mailing of verification requests because the affiant asserted neither personal knowledge of actual mailing nor facts creating a presumption of mailing.
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 (rules on the question, but another ground decided the case)
Held the IME no-show denial untimely and precluded because the claims representative's affidavit did not show, by personal knowledge or office practice, that the tolling verification and follow-up requests were mailed.
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.
- A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2006 NY Slip Op 50504(U)) FollowedThe providers obtained partial summary judgment because denials were untimely or defenses lacked evidentiary support.
- Modern Psychiatric Servs. P.C. v Progressive Ins. Co. (2006 NY Slip Op 50143(U))The insurer failed to prove timely mailing of verification requests and therefore failed to establish a toll of the claim determination period.
Similar decisions
- Colonia Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50679(U))The provider's summary judgment motion failed because its officer did not establish a business-records foundation for the supporting documents.
- Colonia Med., P.C. v Liberty Mut. Fire Ins. Co. (2011 NY Slip Op 52283(U))The provider failed to establish prima facie entitlement to summary judgment despite the insurer's preclusion from offering evidence.
- Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51273(U))The insurer's affidavits established timely mailing of EUO scheduling letters and denials based on the provider's nonappearance.
- Bronxborough Med., P.C. v Travelers Ins. Co. (2007 NY Slip Op 51485(U))The provider failed to establish prima facie entitlement to summary judgment through admissible business records.
- Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50352(U))The provider failed to establish its entitlement to summary judgment because its affidavit did not authenticate the claim forms as business records.