May 10, 2019
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50742(U))
https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-american-tr-ins-co-2019-ny-slip-op50742u/
- Decided
- May 10, 2019
- Citation
- 2019 NY Slip Op 50742(U) · 63 Misc 3d 151(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 Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50742(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2019 NY Slip Op 50742(U) [63 Misc 3d 151(A)] |
| Decided on May 10, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2883 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 12, 2016. The order, insofar as appealed from, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action.
Contrary to plaintiff’s contentions on appeal, defendant established that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 10, 2019
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 insurer established that the EUO scheduling letters had been timely mailed, rejecting the provider's contentions.
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: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the insurer established timely mailing of the EUO scheduling letters and the provider's failure to appear, so dismissal of two causes of action was affirmed.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Similar decisions
- Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U))The insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed.
- Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co. (2018 NY Slip Op 51782(U))The insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted and affirmed on appeal.
- Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 50826(U))The self-insurer established timely mailing of its denial, and the provider's remaining argument was raised for the first time on appeal.
- Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. (2018 NY Slip Op 50770(U))The insurer's motion for summary judgment dismissing the provider's complaint based on EUO and IME nonappearances was granted.
- Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51257(U))The insurer established timely mailing of the EUO scheduling letters and the assignor's failure to appear.