May 17, 2018

Active Care Med. Supply, Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51408(U))

https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-american-tr-ins-co-2018-ny-slip-op51408u/

Court: Civil Court of the City of New York, Kings County
Judge: Odessa Kennedy, J.
Decided: May 17, 2018
Citation: 2018 NY Slip Op 51408(U)
Posture: Summary judgment
Issues: EUO no-show Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

Active Care Med. Supply, Corp. v American Tr. Ins. Co., 2018 NY Slip Op 51408(U) (Civ Ct, Kings County 2018)

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 insurer's attorney affirmation failed to establish nonappearance on the scheduled EUO date. The Civil Court, Kings County, denied both the provider's motion and the insurer's cross motion for summary judgment. The provider failed to establish that the claims were not denied within 30 days or that timely denials were conclusory, vague or legally meritless under Insurance Law § 5106 (a). The insurer's attorney asserted nonappearance on the day after the rescheduled EUO, rather than on the scheduled date. The attorney also relied on a file review without identifying or producing the documents or identifying their creators, and did not explain the detailed recollection of events approximately seven years earlier. The affirmation was conclusory and lacked probative value.

Reported in New York Official Reports at Active Care Med. Supply, Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51408(U))

Active Care Medical Supply, Corp., a/a/o Pierre Nadine, Plaintiff,
against
American Transit Insurance Co., Defendant.

43537/15

For plaintiff:
Oleg Rybak, Esq.
The Rybak Firm PLLC
1810 Voorhies Ave., 3rd Fl, Suite 7
Brooklyn NY 11235

For defendant:
Matteo G. Sandusky, Esq.
Law Offices of Daniel J. Tucker
One Metro Tech Center, 7th Fl
Brooklyn, NY 11201

Odessa Kennedy, J.

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Answering Affidavit 3

Reply Affidavit 4

In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b). Defendant cross-moves for summary judgment, seeking dismissal on the basis that the plaintiff’s assignor failed to appear for an EUO.

To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that [*2]the no-fault claim forms underlying the action were submitted to the defendant and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 2010 NY Slip Op. 08933 [App. Div., 2d Dept., 2010]).

In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly, denied.

Defendant, in support of the cross-motion for summary judgement, submits affirmation of Netanel Bencheim, Esq. dated November 20, 2017 which states that the assignor did not appear for an EUO.

Failure to appear for an EUO violates a condition precedent to coverage, and the burden is on defendant to show that the requested party failed to appear (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op. 50406(U) [App Term, 2d Dept, 2d 11th & 13th Jud Dists, 2015]).

In the case at bar, defendant failed to submit competent proof of assignor’s nonappearance. Mr. Bencheim, a shareholder of Bencheim and Associates states that defendant retained his law firm to conduct plaintiff’s EUO which was scheduled to be held on November 30, 2010, and rescheduled to December 29, 2010 due to plaintiff’s nonappearance. Mr. Bencheim states that he has personal knowledge that “the plaintiff did not attend the examination under oath on December 30, 2010″ which is a day after the scheduled date of the examination. As such, defendant failed to establish that plaintiff failed to appear for the examination on the scheduled date of December 29, 2010.

Moreover, Mr. Bencheim states that he has personal knowledge of plaintiff’s non-appearance for the EUO based on his review of the file. The affirmant does not specify or provide the documents he reviewed, or identify the creator(s) of the unspecified documents. Nor does Mr. Bencheim explain the basis of his detailed recollection of assignor’s non-appearance approximately seven years prior to his November 20, 2017 affirmation.

Accordingly, Mr. Bencheim’s affirmation is conclusory and lacks probative value (Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op. 50331(U) [App. Term., 1st Dept., 2017]).

For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.

Dated: May 17, 2018
ODESSA KENNEDY
Judge of the Civil Court

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

Open the full map

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 overdue (not paid or timely denied)

Held the provider did not establish that the insurer failed to deny the claims within 30 days or that timely denials were conclusory, vague or without merit, so its motion was denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

No-show defense: insurer's proof

Open the full map

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 nonappearance by someone with personal knowledge

Held the insurer failed to prove the EUO nonappearance because its attorney's affirmation addressed the wrong date and rested on an unspecified file review without explaining his recollection seven years later.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 79 (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.

Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50406(U)) FollowedThe provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U)) FollowedThe insurer failed to submit competent proof that the assignor missed the scheduled IMEs. The IME doctor's conclusory affirmation did not adequately explain the basis for recalling, approximately two years later, that the assignor had not appeared on the scheduled dates.

Similar decisions

Prompt Med. Supply, Inc. v Metropolitan Group Prop. & Cas. Ins (2019 NY Slip Op 51594(U))The insurer failed to establish admissible EUO scheduling letters or proper mailing of those letters and its denials.
Metro 8 Med. Equip., Inc. v Esurance Ins. Co. (2016 NY Slip Op 50904(U))The insurer established the assignor's repeated EUO nonappearance through an attorney's affirmation and a scheduling employee's affidavit.
Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NYSlip Op 51935(U))The provider's EUO objections were unpreserved, and the insurer established timely notices and denials and the provider's nonappearance.
Barakat Med. Care, P.C. v Nationwide Ins. Co. (2015 NY Slip Op 51677(U))An insurer need not state objective reasons for assignor EUOs as part of its prima facie showing for summary judgment on nonappearance.
Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.