May 17, 2006
Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 50909(U))
https://www.beynensonlaw.com/case-law/amaze-med-supply-inc-v-allstate-ins-co-2006-ny-slip-op-50909u/
- Decided
- May 17, 2006
- Citation
- 2006 NY Slip Op 50909(U) · 12 Misc 3d 127(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- IME no-show
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 Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 50909(U))
| Amaze Med. Supply Inc. v Allstate Ins. Co. |
| 2006 NY Slip Op 50909(U) [12 Misc 3d 127(A)] |
| Decided on May 17, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-698 K C. NO. 2005-698 K C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered March 18, 2005. The order denied plaintiff’s motion for summary judgment.
Order affirmed without costs.
In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss
sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med.
Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
In opposition to the motion, defendant provided evidence demonstrating the timely mailing of its denial of claim, based upon plaintiff’s assignor’s failure to appear for a pre-claim independent medical examination (IME) (see 11 NYCRR 65-3.8 [c]), as well as its letters to plaintiff’s assignor requesting the IME. Moreover, the record establishes that plaintiff’s assignor failed to appear for the scheduled IME. In view of the foregoing, in our opinion, plaintiff’s motion for summary judgment was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U] [App [*2]Term, 2d & 11th Jud Dists]).
Rios and Belen, JJ., concur.
Golia, J.P., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
AMAZE MEDICAL SUPPLY INC.
a/a/o MARTA YEPES,
Appellant,
-against-
ALLSTATE INSURANCE COMPANY,
Respondent.
Golia, J.P., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 17, 2006
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.
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's proof of mailed IME request letters and the record showing the assignor failed to appear for the pre-claim IME defeated the provider's summary judgment motion.
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the insurer's opposition sufficient where it showed timely mailing of its denial on the pre-claim IME no-show ground along with the IME requests and the nonappearance.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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 (rules on the question, but another ground decided the case)
Held the provider established prima facie entitlement by proving submission of a claim setting forth the fact and amount of the loss and that payment was overdue.
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 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's opposition demonstrated timely mailing of its denial and of the IME request letters, which, with the assignor's nonappearance, defeated the provider's summary judgment motion.
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.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2004 NY Slip Op 24527) FollowedA proven failure to attend a reasonably requested preclaim IME, timely raised in a denial, does not alone warrant dismissal.
- D.A.V. Chiropractic P.C. v American Tr. Ins. Co. (2005 NYSlipOp 50609(U))An insurer's timely denial and admissible proof of a reasonable pre-claim IME nonappearance rebut the presumption of medical necessity.
Cited by
- Prime Psychological Servs., PC v ELRAC, Inc. (2009 NY Slip Op 52579(U))An insurer may deny a claim for a pre-claim IME nonappearance even when its denial also cites a post-claim IME nonappearance.
- Lender Med. Supply, Inc. v Hartford Ins. Co. (2012 NY Slip Op 50903(U))An insurer's consent to adjourn an EUO prevents it from counting nonappearance on that date as a no-show.
Similar decisions
- Amaze Med. Supply Inc. v General Assur. Co. (2006 NY Slip Op 50307(U))The insurer's proof of pre-claim IME nonattendance raised a factual issue as to the medical necessity of the supplies.
- Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 51315(U))The insurer's IME nonappearance defense failed because it did not establish mailing of the scheduling requests to the assignor.
- Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50211(U))The provider established entitlement to summary judgment by proving submission of complete claims that were not paid or denied within 30 days.
- Amaze Med. Supply Inc. v Hereford Ins. Co. (2005 NYSlipOp 51331(U))The insurer's peer reviews raised a triable issue of medical necessity by providing a sufficient factual basis and medical rationale.
- Amaze Med. Supply Inc. v New York Cent. Mut. Ins. Co. (2004 NY Slip Op 51680(U))The assignor's unexcused failure to attend reasonable preclaim IMEs raised a medical-necessity issue requiring denial of both summary judgment motions.