July 5, 2013

Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))

https://www.beynensonlaw.com/case-law/bright-med-supply-co-v-ids-prop-cas-ins-co-2013-ny-slip-op51123u/

Court: Appellate Term, Second Department
Decided: July 5, 2013
Citation: 2013 NY Slip Op 51123(U) · 40 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Distinguished in 1 and followed in 26 later decisions (see Cited by)
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130(A), 2013 NY Slip Op 51123(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 failed to prove the provider's EUO nonappearance through someone with personal knowledge. In the provider's action for assigned no-fault benefits, the insurer sought summary judgment dismissing the complaint based on asserted timely and proper denials for failure to attend scheduled EUOs. Following Alrof, Inc. v Safeco Natl. Ins. Co., the Appellate Term, Second Department, affirmed denial of the insurer's motion because its proof did not establish the alleged nonappearances.

Reported in New York Official Reports at Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))

[*1]

Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co.

2013 NY Slip Op 51123(U) [40 Misc 3d 130(A)]

Decided on July 5, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2013

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-2147 K C.

Bright Medical Supply Co. as Assignee of LOURDES MARRERO, Respondent, —
against
IDS Property & Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 18, 2011. The order denied 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, defendant moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant’s motion.

Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion was properly denied (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 05, 2013

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 failed to prove the nonappearance by someone with personal knowledge

Held the insurer's motion properly denied because it offered no proof from anyone with personal knowledge that the provider failed to appear for the scheduled EUOs.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) FollowedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.

Cited by (40)

A label shows how the later decision treated this one.

New Capital Supply, Inc. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 24277) DistinguishedThe insurer's attorney affirmation established personal knowledge of the provider's failure to appear for two scheduled EUOs. The attorney was present on both dates and stated unequivocally that, had the provider appeared, the attorney would have conducted the EUO or assigned another attorney to do so.
Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50922(U)) FollowedThe insurer failed to establish the assignor's IME nonappearance or receipt of notice of both scheduled IMEs. The provider appealed from summary judgment dismissing its assigned no-fault claims.
SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 50952(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through a person with personal knowledge.
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U)) FollowedThe insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.
K.O. Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51151(U)) FollowedThe defendant failed to prove the assignor's IME nonappearances because its affiants did not establish personal knowledge.
Compas Med., P.C. v Travelers Insurance Company (2016 NY Slip Op 51424(U)) FollowedThe insurer proved a verification defense to one claim but lacked personal-knowledge proof of EUO nonappearance for seven others.
Alleviation Med. Servs., P.C. v Hertz Co. (2016 NY Slip Op 50909(U)) FollowedThe insurer lacked personal-knowledge proof of EUO nonappearance, while the provider failed to show that the defense lacked legal merit.
Acupuncture Healthcare Plaza I, P.C. v Hertz Co. (2016 NY Slip Op 50865(U)) FollowedThe insurer failed to prove the assignor's EUO and IME nonappearances through witnesses with personal knowledge.
Alleviation Med. Servs., P.C. v Hertz Co. (2016 NY Slip Op 50399(U)) FollowedThe insurer failed to prove IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment.
Alleviation Med. Servs., P.C. v Hertz Co. (2016 NY Slip Op 50371(U)) FollowedThe insurer lacked personal-knowledge proof of EUO nonappearance, but the provider failed to establish that its denial was legally meritless.

Show all 40 citing decisions

Similar decisions

Clove Med. Supply, Inc. v Ameriprise Ins. Co. (2014 NY Slip Op 50357(U))The insurer failed to establish timely EUO requests because the record omitted the dates it received the provider's claims.
St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 50919(U))The insurer failed to establish timely EUO scheduling and denials, defeating its motion for summary judgment based on nonappearance.
Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50319(U))The provider's objections to the EUO scheduling letters were not heard because it did not claim to have responded to the requests.
Bright Med. Supply Co. v Tri State Consumer Ins. Co. (2013 NY Slip Op 51122(U))The insurer established nonreceipt of the provider's claim, and the provider failed to show proper mailing to the insurer's address.