August 17, 2005
Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 51315(U))
https://www.beynensonlaw.com/case-law/amaze-med-supply-inc-v-state-farm-mut-auto-ins-co-2005-nyslipop-51315u/
- Decided
- August 17, 2005
- Citation
- 2005 NY Slip Op 51315(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
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 State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 51315(U))
| Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co. |
| 2005 NYSlipOp 51315(U) |
| Decided on August 17, 2005 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: August 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-1334 K C
against
State Farm Mutual Automobile Insurance Company, Appellant.
Appeal by defendant from an order of the Civil Court, Kings County (P. Sweeney, J.), entered June 29, 2004, which denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment, deemed an appeal from a judgment of the same court, entered August 23, 2004, awarding plaintiff the sum of $1,819.20.
Judgment unanimously 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]). Assuming arguendo that defendant timely denied the claims, it nevertheless had to submit proof in admissible form to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra).
In the instant action, defendant’s denial was predicated upon the failure of plaintiff’s assignor to appear for pre-claim independent medical examinations (IMEs). Although the failure of plaintiff’s assignor to appear at a pre-claim IME can be sufficient to rebut a prima facie case established by plaintiff, to properly interpose such opposition to plaintiff’s cross motion for summary judgment, defendant had to proffer evidence in admissible form establishing the failure of plaintiff’s assignor to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]). While defendant’s counsel and defendant’s claims representative averred that plaintiff’s assignor failed to appear for pre-[*2]claim IMEs, they failed either to establish that they had personal knowledge that the requests for such IMEs were mailed to plaintiff’s assignor or to create a presumption of mailing by submitting an affidavit describing the standard office practice or procedures defendant uses to ensure that such letters are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff was entitled to summary judgment because defendant failed to rebut the prima facie case established by plaintiff (see Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]; S & M Supply v GEICO Ins., 3 Misc 3d 136[A], 2004 NY Slip Op 50502[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U], supra; cf. Amaze Med. Supply Inc. v New York Cent. Mut. Ins. Co., 6 Misc 3d 126[A], 2004 NY Slip Op 51680[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: August 17, 2005
Legal questions (3)
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 proof did not establish mailing of its denial, verification request or IME/EUO notice
Held counsel's and the claims representative's averments insufficient because neither showed personal knowledge that the IME requests were mailed or described a standard office practice ensuring proper addressing and mailing.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (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 failed to prove the scheduling letters were mailed or properly addressed
Held the pre-claim IME no-show did not rebut the provider's case because the insurer's affiants neither showed personal knowledge of mailing the IME requests nor described a standard mailing practice.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (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 its prima facie case by proof that it submitted a claim setting forth the fact and amount of the loss and that payment was overdue.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (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.
- A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
- 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.
- Amaze Med. Supply v Colonial Penn Ins. Co. (2004 NY Slip Op 50471(U))A factual affidavit is not rendered defective merely because a nonattorney affiant includes two case citations in a footnote.
- Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co. (2005 NY Slip Op 50254(U))The insurer's conclusory office-practice affidavit failed to prove timely mailing of verification requests.
- S & M Supply v Geico Ins. (2004 NY Slip Op 50502(U))The insurer failed to prove timely mailing of verification requests that would toll its 30-day period to pay or deny the claim.
- Amaze Med. Supply Inc. v New York Cent. Mut. Ins. Co. (2004 NY Slip Op 51680(U)) Contrasted (cf., but see)The assignor's unexcused failure to attend reasonable preclaim IMEs raised a medical-necessity issue requiring denial of both summary judgment motions.
Cited by
A label shows how the later decision treated this one.
- Foster Diagnostic Imaging, P.C. v General Assur. Co. (2005 NY Slip Op 25431) FollowedThe providers failed to prove medical necessity after the insurer established their assignors' nonappearance at preclaim IMEs. Following a joint trial, the Civil Court, Kings County, awarded judgment to the insurer dismissing both complaints.
- Star Med. Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 50129(U)) FollowedThe insurer's EUO and staged-collision defenses lacked sufficient proof to defeat the provider's summary judgment motion.
- Function Supply v Progressive Ins. Co. (2005 NY Slip Op 51755(U))The insurer failed to establish timely mailing of verification requests, so the 30-day period to pay or deny was not tolled.
Similar decisions
- Amaze Med. Supply Inc. v General Assur. Co. (2005 NY Slip Op 50960(U))The insurer failed to raise a factual issue on IME nonappearance because it offered no competent proof that the requests were mailed.
- Amaze Med. Supply Inc. v Lumbermens Mut. Cas. Co. (2005 NY Slip Op 50084(U))The insurer's unsworn peer review report failed to raise a triable issue against the provider's prima facie showing.
- Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 50909(U))The insurer established the assignor's failure to attend a pre-claim IME, defeating the provider's summary judgment motion.
- 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 Allstate Ins. Co. (2008 NY Slip Op 51866(U))The provider failed to establish its prima facie case because its affidavit did not lay a business-records foundation.