July 12, 2013
Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51266(U))
https://www.beynensonlaw.com/case-law/colonia-med-p-c-v-new-york-cent-mut-fire-ins-co-2013-ny-slip-op51266u/
- Decided
- July 12, 2013
- Citation
- 2013 NY Slip Op 51266(U) · 40 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Split result
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 Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51266(U))
| Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2013 NY Slip Op 51266(U) [40 Misc 3d 134(A)] |
| Decided on July 12, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-2762 K C.
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 25, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it asserted claims by plaintiff as assignee of Curtis Kanhai, and implicitly found that plaintiff had established its prima facie case.
ORDERED that the order, insofar as appealed from, is modified by striking the provision implicitly finding that plaintiff had established its prima facie case; as so modified, the order, insofar as appealed from, is affirmed, without costs.
As relevant to this appeal, in this action by a provider to recover assigned first- party no-fault benefits, defendant moved for summary judgment dismissing the complaint insofar as it asserted claims by plaintiff as assignee of Curtis Kanhai. Defendant’s submissions indicated that Kanhai had failed to appear for scheduled independent medical examinations (IMEs) and, with [*2]regard to two of plaintiff’s claims, in the sums of $465.53 and $560.17, respectively, that these claims were premature since plaintiff had failed to provide requested documentary verification. Plaintiff opposed defendant’s motion, arguing that the IME doctor’s affidavit, which defendant had submitted in support of its IME nonappearance defense, was incomplete and unsigned, and cross-moved for summary judgment. Subsequently, defendant served what it denominated an amended motion for summary judgment, which included the IME doctor’s complete affidavit. Plaintiff submitted opposition thereto. The Civil Court deemed defendant’s amended motion to be its reply papers. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issues to be determined at trial were “proper notice of the IME, medical necessity and fee schedule.” Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment dismissing the complaint insofar as it asserted claims by plaintiff as assignee of Curtis Kanhai, and implicitly found that plaintiff had established its prima facie case.
In our opinion, the Civil Court properly considered defendant’s amended motion to be a reply since the substance of defendant’s papers was unchanged and the papers merely corrected a technical defect in the affidavit of defendant’s IME doctor (see CPLR 2001). Furthermore, plaintiff submitted a response to defendant’s reply papers (see Zernitsky v Shurka, 94 AD3d 875 [2012]; Hoffman v Kessler, 28 AD3d 718 [2006]).
With respect to the merits of defendant’s motion, we find that defendant failed to meet its burden of establishing that plaintiff’s assignor had not appeared for scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) since there was a discrepancy in the recitation by the IME doctor of the address at which the assignor was to have been examined. The record also shows that defendant failed to establish that plaintiff’s claims in the amounts of $465.53 and $560.17 for services provided to assignor Kanhai were premature. A review of defendant’s letters to plaintiff reveals that the letters merely notified plaintiff that defendant was delaying consideration of the claims pending investigation into the motor vehicle accident at issue. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny those claims (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant failed to establish entitlement to summary judgment dismissing so much of the complaint as sought to recover upon claims assigned to plaintiff by Curtis Kanhai.
Contrary to the implicit determination of the Civil Court, the record shows that plaintiff did not establish its prima facie case (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
Accordingly, the order, insofar as appealed from, is modified by striking the provision implicitly finding that plaintiff established its prima facie case.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 12, 2013
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved
Struck the implicit finding that the provider established its prima facie case because its proof did not lay a CPLR 4518 business-records foundation for the claim forms.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 208 (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 nonappearance by someone with personal knowledge
Held the insurer failed to establish the assignor's nonappearance at the scheduled IMEs because the IME doctor's affidavit recited a discrepant address for where the examination was to occur.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Defense rejected because the insurer's requests or proof were deficient (rules on the question, but another ground decided the case)
Held two claims not shown premature because the insurer's letters merely announced a delay pending investigation of the accident and did not request verification, so they did not toll the time to pay or deny.
Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 78 (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.
- Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962) FollowedAn insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim.
- Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co. (2012 NY Slip Op 51649(U)) FollowedAn insurer's delay letters requesting no verification do not toll the 30-day period to pay or deny a no-fault claim.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Similar decisions
- Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations.
- Art of Healing Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50766(U))The insurer failed to obtain IME nonappearance dismissal, and the provider failed to establish its prima facie case for the disputed claim.
- Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
- Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))The insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.