December 22, 2017
Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U))
https://www.beynensonlaw.com/case-law/careful-complete-med-p-c-v-hartford-ins-co-2017-ny-slip-op51858u/
- Decided
- December 22, 2017
- Citation
- 2017 NY Slip Op 51858(U) · 58 Misc 3d 140(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U))
| Careful Complete Med., P.C. v Hartford Ins. Co. |
| 2017 NY Slip Op 51858(U) [58 Misc 3d 140(A)] |
| Decided on December 22, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th
JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M.
SOLOMON, JJ
2015-363 K C
against
Hartford Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Iseman, Cunningham, Riester & Hyde, LLP, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 11, 2014. 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, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUOs on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that EUO scheduling letters and the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017
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 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 affirmation of the insurer's attorney, present to conduct the EUOs on the scheduled dates, established the provider's nonappearance, and the scheduling letters were shown mailed.
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)
Found the insurer's proof raised a presumption that the denial of claim forms on the EUO no-show ground were properly mailed, supporting dismissal.
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.
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 proof sufficient to raise a presumption that the EUO scheduling letters and the denial of claim forms were properly mailed.
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.
- 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.
- 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.
Similar decisions
- Compas Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 50953(U))The insurer's submissions established a presumption that its IME nonappearance denials were timely and properly mailed.
- Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51683(U))The insurer established timely mailing of EUO scheduling letters and the provider's failure to appear for the scheduled EUOs. In the provider's action to recover assigned first-party no-fault benefits, the Civil Court, Kings County, granted the insurer's motion for summary judgment dismissing the complaint.
- All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.
- Ss Med. Care, P.C. v Hartford Ins. Co. (2013 NY Slip Op 51032(U))The insurer established mailing of the EUO scheduling letters and denials, defeating the provider's sole appellate challenge to dismissal.
- Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. (2018 NY Slip Op 50770(U))The insurer's motion for summary judgment dismissing the provider's complaint based on EUO and IME nonappearances was granted.