February 28, 2014
Clove Med. Supply, Inc. v Ameriprise Ins. Co. (2014 NY Slip Op 50357(U))
https://www.beynensonlaw.com/case-law/clove-med-supply-inc-v-ameriprise-ins-co-2014-ny-slip-op50357u/
- Decided
- February 28, 2014
- Citation
- 2014 NY Slip Op 50357(U) · 42 Misc 3d 146(A)
- Posture
- Summary judgment
- Outcome
- Provider 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 Clove Med. Supply, Inc. v Ameriprise Ins. Co. (2014 NY Slip Op 50357(U))
| Clove Med. Supply, Inc. v Ameriprise Ins. Co. |
| 2014 NY Slip Op 50357(U) [42 Misc 3d 146(A)] |
| Decided on February 28, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-2145 K C.
against
Ameriprise Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 16, 2012. 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 appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for an examination under oath (EUO).
In support of its motion, defendant was required, but failed, to demonstrate that its initial and follow-up requests for EUOs of plaintiff had been timely mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]), as the record is devoid of any reference to the dates on which defendant had received plaintiff’s claim forms. Consequently, defendant failed to demonstrate that it had tolled its time to pay or deny the claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff had failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997] Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, the Civil Court properly denied defendant’s motion (see NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702 [2011] Westchester Med. Ctr., 60 AD3d 1045).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014
Legal questions (2)
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 failed to show it tolled its time to pay or deny, and thus that it was not precluded from its EUO no-show defense, because receipt dates of the claims were not shown.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held the insurer failed to show its initial and follow-up EUO requests were timely under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), since the record did not show when it received the claims.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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
- Clove Med. Supply, Inc. v IDS Prop. Cas. Ins. Co. (2015 NY Slip Op 51401(U))The insurer's motion for summary judgment on EUO nonappearance was denied for lack of proof from a person with personal knowledge.
- A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
- Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51621(U))The insurer failed to prove IME nonappearance through a person with personal knowledge, while the provider failed to establish its prima facie case.
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.
- Healthway Med. Care, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 50733(U))The insurer's EUO requests were nullities because its initial request was sent more than 30 days after receipt of the claims.