March 28, 2007
A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2007 NY Slip Op 50663(U))
https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-state-wide-ins-co-2007-ny-slip-op-50663u/
- Decided
- March 28, 2007
- Citation
- 2007 NY Slip Op 50663(U) · 15 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Insurer 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 A.B. Med. Servs. PLLC v State-Wide Ins. Co. (2007 NY Slip Op 50663(U))
| A.B. Med. Servs. PLLC v State-Wide Ins. Co. |
| 2007 NY Slip Op 50663(U) [15 Misc 3d 131(A)] |
| Decided on March 28, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON PATTERSON and BELEN, JJ
2005-1819 K C.
against
State-Wide 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 4, 2005. The order denied plaintiffs’ motion for summary judgment.
Order affirmed without costs.
In this action to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition, defendant submitted an affidavit from an employee of the third-party retained by it to schedule and perform independent medical examination (IMEs) on defendant’s behalf. The court denied plaintiffs’ motion for
summary judgment, holding that there was an issue of fact due to the failure of plaintiffs’ assignor to comply with properly noticed IME requests. On appeal, plaintiffs contend, inter alia, that they were entitled to summary judgment because defendant failed to proffer non-hearsay evidence establishing that the IME notices were actually mailed.
Contrary to plaintiffs’ contention, the affidavit submitted by defendant was sufficient to establish that the IME notices were mailed (see Amaze Med. Supply Inc. v General Assur. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50307[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the order is affirmed. [*2]
Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: March 28, 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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice
Held the affidavit of an employee of the insurer's IME scheduling vendor sufficient to establish that the IME notices were mailed, rejecting the provider's hearsay challenge, so summary judgment for the provider was properly denied.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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: Proof on the no-show raises a question of fact; neither side wins the point as a matter of law
Held the IME vendor employee's affidavit sufficiently established mailing of the IME notices, so the assignor's failure to attend properly noticed IMEs raised an issue of fact defeating the providers' summary judgment motion.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 24 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Amaze Med. Supply Inc. v General Assur. Co. (2006 NY Slip Op 50307(U)) FollowedThe insurer's proof of pre-claim IME nonattendance raised a factual issue as to the medical necessity of the supplies.
Similar decisions
- Amaze Med. Supply Inc. v General Assur. Co. (2006 NY Slip Op 50910(U))The insurer's proof of mailing IME notices and the assignor's nonappearance raised a triable issue defeating the provider's cross motion.
- A.B. Med. Servs. v Allstate Ins. Co. (2004 NY Slip Op 50373(U))The providers' billing affidavit failed to establish their prima facie case because it did not identify which of three providers it covered.
- A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 50432(U))The providers failed to establish prima facie entitlement to partial summary judgment because they omitted the necessary claim forms.
- A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NY Slip Op 51893(U))The insurer waived defenses based on incomplete assignments by failing to object within 10 days of receipt.
- A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50746(U))The providers' billing affidavit failed to identify which of the three providers the affiant represented and did not establish a prima facie case.