September 9, 2005
Elite Psychological Servs., P.C. v Trumbull Ins. Co. (2005 NY Slip Op 51427(U))
https://www.beynensonlaw.com/case-law/elite-psychological-servs-p-c-v-trumbull-ins-co-2005-ny-slip-op-51427u/
- Decided
- September 9, 2005
- Citation
- 2005 NY Slip Op 51427(U) · 9 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- 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 Elite Psychological Servs., P.C. v Trumbull Ins. Co. (2005 NY Slip Op 51427(U))
| Elite Psychological Servs., P.C. v Trumbull Ins. Co. |
| 2005 NY Slip Op 51427(U) [9 Misc 3d 126(A)] |
| Decided on September 9, 2005 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. PHYLLIS GANGEL-JACOB, Justices.
against
Trumbull Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County, entered March 30, 2004 (Irving Rosen, J.) which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
PER CURIAM:
Order entered March 30, 2004 (Irving Rosen, J.) reversed, with $10 costs, plaintiff’s motion for summary judgment is granted, defendant’s cross motion is denied and the matter is remanded to Civil Court for a calculation of statutory interest, an assessment of attorney’s fees due thereon and entry of judgment.
Plaintiff health care provider commenced this action to recover $1,080.90 in first-party no-fault benefits for medical services rendered in February and March 2002 to its assignor, Harnarine Sumeer (Sumeer), for injuries allegedly sustained in a motor vehicle accident on December 17, 2001. Plaintiff mailed its claim on May 30, 2002 and defendant acknowledged receipt thereof on June 3, 2002. The suit is premised on defendant’s failure to pay or deny the claim within 30 days after its receipt. Defendant’s reason for denying the claim, as stated in its Denial Of Claim Form dated August 15, 2002, was Sumeer’s nonattendance at scheduled [*2]examinations under oath (EUOs).
Plaintiff established a prima facie showing of entitlement to judgment as a matter of law by proof that its claim had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law 5106[a]; Mary Immaculate Hosp v Allstate Ins Co, 5 AD3d 742 [2004]).
Defendant failed to raise triable issues of fact since its submissions did not establish that the insurance policy in effect contained an endorsement authorizing EUOs pursuant to 11 NYCRR 65-1.1(d). While plaintiff’s claim was submitted after the April 5, 2002 effective date of the revised insurance regulations which include EUOs in the Mandatory Personal Injury Protection Endorsement, the provisions of the revised regulations are not applicable to claims until new policies containing the revised endorsement are issued or renewed (see Star Medical Services PC v Eagle Insurance Company, 6 Misc3d 56 [2004]). Consequently, absent a showing that the subject policy contained an endorsement permitting EUOs, defendant was not entitled to a tolling of the 30-day period (11 NYCRR 65-3.8[c]) and its denial of plaintiff’s claim was untimely.
This constitutes the decision and order of the court.
Decision Date: September 09, 2005
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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held the EUO no-show denial ineffective because the insurer did not show its policy contained the revised endorsement authorizing EUOs, so the EUO requests did not toll the 30 days and the denial was untimely.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the EUO no-show denial untimely because, absent proof the policy contained an endorsement permitting EUOs, the EUO requests did not toll the 30-day period, so the provider recovered.
Of the 36 decisions on this question in the First Department courts and the Court of Appeals, 3 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider made its prima facie showing by proof that its claim was mailed and received and that payment was overdue.
Of the 52 decisions on this question in the First Department courts and the Court of Appeals, 45 (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) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Cited by
A label shows how the later decision treated this one.
- SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 51842(U)) FollowedThe insurer's EUO defense failed because it did not establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, First Department, reversed the denial of the providers' summary judgment motion, granted the motion, and remanded for statutory interest, attorney fees, and entry of judgment.
Similar decisions
- Star Med. Servs. P.C. v Eagle Ins. Co. (2004 NY Slip Op 24482)The insurer failed to establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, Second Department, reversed the order denying the provider's summary judgment motion, granted the motion, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a).
- West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51374(U))The insurer failed to establish that the policy contained an endorsement authorizing EUOs. The provider proved submission of a claim stating the fact and amount of the loss and overdue payment under Insurance Law § 5106 (a).
- Star Med. Servs. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50505(U))The insurer failed to establish an EUO-authorizing endorsement or submit admissible evidence of a staged-accident defense.
- Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 28342)The 30-day examination deadline in 11 NYCRR 65-3.5 (d) does not apply to EUOs. The provider challenged summary judgment dismissing its claims because the initial EUO was set more than 30 days after receipt of the claim.
- Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co. (2015 NY Slip Op 50470(U))No provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO. The lower court denied summary judgment for lack of an objective justification despite finding timely notices, reasonable scheduling and the assignor's nonappearance.