May 25, 2004

A.B. Med. Servs. v Travelers Prop. Cas. Corp. (2004 NY Slip Op 50517(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-v-travelers-prop-cas-corp-2004-ny-slip-op-50517u/

Court: Appellate Term, Second Department
Decided: May 25, 2004
Citation: 2004 NY Slip Op 50517(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case EUO no-show
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

A.B. Med. Servs. v Travelers Prop. Cas. Corp., 2004 NY Slip Op 50517(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2004)

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.

The providers failed to establish their prima facie case because the billing manager's affidavit did not identify the provider served. The affidavit described its author as the practice and billing manager of "plaintiff," although multiple providers sought assigned no-fault benefits. Without specifying which provider the affiant served in that capacity, the affidavit did not establish that the providers submitted properly completed claim forms. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying their motion for summary judgment. It also stated that the insurer could not assert an EUO nonappearance defense because the applicable regulation did not require claimants to submit to EUOs.

Reported in New York Official Reports at A.B. Med. Servs. v Travelers Prop. Cas. Corp. (2004 NY Slip Op 50517(U))

[*1]

A.B. Med. Servs. v Travelers Prop. Cas. Corp.

2004 NY Slip Op 50517(U)

Decided on May 25, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 25, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:ARONIN, J.P., PATTERSON and GOLIA, JJ.
NO. 2003-1062 K C

A.B. MEDICAL SERVICES PLLC DANIEL KIM’S ACUPUNCTURE P.C. D.A.V. CHIROPRACTIC P.C. a/a/o STEPHANIE LOPEZ, Appellants,

against

TRAVELERS PROPERTY CASUALTY CORPORATION, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered on June 6, 2003, as denied their motion for summary judgment.

Order, insofar as appealed from, unanimously affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs’ motion for summary judgment was supported by the affidavit of Bella Safir, wherein she stated that she is the “practice and billing manager of plaintiff.” In the absence of a statement
specifying for which of the plaintiffs Safir is the billing manager, the affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, March 23, 2004 [App Term, 9th &10th Jud Dists]). Accordingly, plaintiffs failed to establish a prima facie entitlement to no-fault benefits (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), and their motion for summary judgment was properly denied.

We note that defendant is precluded from asserting the defense of failure to appear for [*2]examinations under oath since the applicable insurance regulation did not contain a provision requiring claimants to submit to same (see King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 2d & 11th Jud Dists]).
Decision Date: May 25, 2004

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.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)

Held the billing manager's affidavit insufficient to show properly completed claim forms were provided because it did not specify for which of the several plaintiffs the affiant worked.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decision

Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 77 (this one included) are in the same category.

No-show defense: insurer's proof

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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 (rules on the question, but another ground decided the case)

Noted the insurer could not assert the EUO no-show defense because the applicable regulation did not require claimants to submit to examinations under oath.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decision

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 99 (this one included) are in the same category.

Similar decisions

A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. (2004 NY Slip Op 50779(U))The providers' billing-manager affidavit failed to establish their prima facie case because it did not identify which provider it covered.
A.B. Med. Servs. v Am. Tr. Ins. Co. (2004 NY Slip Op 50515(U))The providers failed to establish submission of completed claim forms because their billing affidavit did not identify the provider it covered.
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. (2004 NY Slip Op 50903(U))The providers' billing affidavit failed to establish submission of completed claim forms because it did not identify the entity represented.
A.B. Med. Servs. v Country-Wide Ins. Co. (2004 NY Slip Op 50535(U))The providers' billing affidavit failed to establish their prima facie case because it did not identify which provider employed the billing manager.