March 17, 2016
Alleviation Med. Servs., P.C. v Farmers New Century Ins. Co. (2016 NY Slip Op 50379(U))
https://www.beynensonlaw.com/case-law/alleviation-med-servs-p-c-v-farmers-new-century-ins-co-2016-ny-slipop-50379u/
- Decided
- March 17, 2016
- Citation
- 2016 NY Slip Op 50379(U) · 51 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Split result
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 Alleviation Med. Servs., P.C. v Farmers New Century Ins. Co. (2016 NY Slip Op 50379(U))
| Alleviation Med. Servs., P.C. v Farmers New Century Ins. Co. |
| 2016 NY Slip Op 50379(U) [51 Misc 3d 128(A)] |
| Decided on March 17, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1285 Q C
against
Farmers New Century Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 30, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon the first cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees upon the first cause of action.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Contrary to plaintiff’s contention, defendant established that the independent medical examination (IME) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim underlying the second cause of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact in opposition to this branch of defendant’s cross motion, defendant was entitled to summary judgment dismissing the second cause of action.
However, with respect to the first cause of action, plaintiff established submission of the claim form, and the affidavit of defendant’s no-fault claims adjuster states that the claim at issue was not denied within 30 days of its receipt (see 11 NYCRR 65-3.8 [a] [1]). As a result, the record establishes plaintiff’s prima facie case upon its first cause of action (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]). Since defendant did not demonstrate that the 30-day claim determination period (see 11 NYCRR 65-3.8) had been tolled for this claim, defendant is precluded from asserting, with respect to this claim, its proffered defense that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Consequently, plaintiff is entitled to summary judgment upon its first cause of action.
Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon the first cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action is denied, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of [*2]attorney’s fees upon the first cause of action, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 17, 2016
Legal questions (4)
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer precluded from asserting the IME no-show defense to one claim because it did not show the 30-day period was tolled, while the other claim, timely denied on that ground, was dismissed.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case
Held the provider made out its prima facie case on one claim because it showed submission of the claim form and the insurer's own adjuster stated the claim was not denied within 30 days.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (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 that the IME scheduling letters were timely mailed and that the assignor failed to appear, so the assignor breached a condition precedent to coverage.
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.
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 (rules on the question, but another ground decided the case)
Held the insurer proved timely mailing of the IME scheduling letters and of its denial of the second claim, rejecting the provider's contrary contention.
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.
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.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Similar decisions
- Alleviation Med. Servs., P.C. v A Cent. Ins. Co. (2016 NY Slip Op 50383(U))The insurer failed to establish timely and proper mailing of the IME scheduling letters, defeating summary judgment on its nonappearance defense.
- Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))The insurer failed to prove both IME nonappearances, and the provider failed to establish an untimely or legally defective denial.
- Alleviation Med. Servs., P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51347(U))Conflicting proof of mailing and nonreceipt raised a factual issue as to whether the insurer's time to pay or deny began to run.
- Alleviation Med. Servs., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51628(U))The provider failed to establish an overdue claim or a timely denial that was conclusory, vague, or legally meritless.
- Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 50952(U))The insurer failed to establish proper mailing of IME notices because the record showed conflicting addresses and no confirmed attorney representation.