November 30, 2018

Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co. (2018 NY Slip Op 51782(U))

https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-metropolitan-gen-ins-co-2018-ny-slip-op-51782u/

Court: Appellate Term, Second Department
Decided: November 30, 2018
Citation: 2018 NY Slip Op 51782(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co., 2018 NY Slip Op 51782(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 summary judgment motion dismissing the provider's claims for EUO nonappearance was granted and affirmed on appeal. The Appellate Term, Second Department, found that the insurer sufficiently established the provider's failure to appear for two scheduled EUOs, citing Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co..

Reported in New York Official Reports at Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co. (2018 NY Slip Op 51782(U))

[*1]

Active Care Med. Supply Corp. v Metropolitan Gen. Ins. Co.

2018 NY Slip Op 51782(U)

Decided on November 30, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1399 K C

Active Care Medical Supply Corp., as Assignee of Seymour, Senior, Appellant,
against
Metropolitan General Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered May 3, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant sufficiently established plaintiff’s failure to appear for two scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018

Legal questions

A question 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.

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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer sufficiently established the provider's failure to appear for two scheduled EUOs, rejecting the provider's challenge to that proof and affirming summary judgment dismissing the complaint.

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, 525 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

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. (2019 NY Slip Op 52068(U))The insurer's cross motion for summary judgment dismissing the complaint for the provider's EUO nonappearance was granted and affirmed.
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.
Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U))The insurer established the provider's EUO nonappearance and proper mailing of the scheduling letters and denial forms.
Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 51639(U))The self-insurer's summary judgment dismissing the provider's claims for the assignor's IME nonappearance was affirmed.
Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50744(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.