October 11, 2016

Compas Med., P.C. v ELRAC, Inc. (2016 NY Slip Op 51497(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-elrac-inc-2016-ny-slip-op-51497u/

Court: Appellate Term, Second Department
Decided: October 11, 2016
Citation: 2016 NY Slip Op 51497(U) · 53 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Distinguished in 1 and followed in 1 later decisions (see Cited by)
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Compas Med., P.C. v ELRAC, Inc., 53 Misc 3d 138(A), 2016 NY Slip Op 51497(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 defendant established untimely accident notice, timely denials, and the absence of a reasonable justification for the delay. A photocopy of the envelope containing the first notice documents showed postage and postmark dates of July 7, 2010, establishing mailing outside the period required by 11 NYCRR 65-2.4 (b). Neither the provider nor the assignor satisfied that condition precedent to coverage under 11 NYCRR 65-2.4 (a), (b). An affidavit from the third-party administrator's employee established timely mailing of the denials. Those denials offered to excuse late notice upon reasonable justification under 11 NYCRR 65-3.3 (e), but none was provided. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint.

Reported in New York Official Reports at Compas Med., P.C. v ELRAC, Inc. (2016 NY Slip Op 51497(U))

[*1]

Compas Med., P.C. v ELRAC, Inc.

2016 NY Slip Op 51497(U) [53 Misc 3d 138(A)]

Decided on October 11, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2705 Q C

Compas Medical, P.C., as Assignee of Daniel Joseph, Appellant,

against

ELRAC, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 19, 2013. 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, defendant moved for summary judgment dismissing the complaint on the ground that the claims at issue had been timely denied based upon the failure of plaintiff’s assignor and/or plaintiff to provide timely written notice of the accident at issue (see 11 NYCRR 65-2.4 [a], [b]). The Civil Court granted defendant’s motion.

Contrary to plaintiff’s argument, defendant conclusively established that the documents providing notice of the subject accident had not been mailed until July 7, 2010, by submitting a photocopy of the envelope in which defendant first received the documents, on which both the postage and the postmark are dated July 7, 2010, and that they therefore had not been submitted to defendant within the time frame required by 11 NYCRR 65-2.4 (b) (cf. CPLR 2103 [b] [2]; [f] [1]; Kresch v Saul, 29 AD3d 863 [2006]). Consequently, neither plaintiff nor plaintiff’s assignor complied with a condition precedent to coverage (see 11 NYCRR 65-2.4 [a], [b]).

Plaintiff also argues that defendant failed to prove that it had timely denied the claims. However, defendant submitted an affidavit by an employee of its third-party administrator, which affidavit sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, the denial of claim forms advised plaintiff that the late notice of claim would “be excused should the applicant or the assignee provide reasonable justification for the failure to give timely notice” (see 11 NYCRR 65-3.3 [e]; Radiology Today, P.C. v Citiwide Auto Leasing Inc., 15 Misc 3d 92 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Defendant established that no such justification was provided. Thus, defendant’s motion for summary judgment dismissing the complaint was properly granted (see Great Health Care Chiropractic, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51223[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 11, 2016

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.

Proof of mailing

Open the full map

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

Held the third-party administrator employee's affidavit sufficiently established timely mailing of the late-notice denials.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

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.
Great Health Care Chiropractic, P.C. v Elrac, Inc. (2015 NY Slip Op 51223(U)) FollowedThe provider's accident notice was mailed one day late, and no reasonable justification excused the delay.

Cited by

A label shows how the later decision treated this one.

Williams v Kemper Independence Ins. Co. (2025 NY Slip Op 50101(U)) DistinguishedFailure to submit a requested completed NF-2 breaches a condition precedent to no-fault coverage.
Greenway Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51236(U)) FollowedThe defendant's summary judgment dismissing the complaint was affirmed on its defense of untimely accident notice.

Similar decisions

Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51191(U))The insurer established untimely notice of the accident, and the provider failed to rebut that proof.
Medical Careworks, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 51281(U))The insurer established late notice of the accident, and the provider offered neither contrary proof nor a reasonable justification.
Citywide Social Work & Psychological Servs., PLLC v Elrac, Inc. (2011 NY Slip Op 52363(U))The self-insurer established untimely accident notice and absence of written proof excusing noncompliance with the applicable 90-day limit.
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51417(U))The insurer established proper mailing of verification requests and denials and timely denial after receipt of verification.