February 19, 2013
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2013 NY Slip Op 50254(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-farm-family-cas-ins-co-2013-ny-slip-op50254u/
- Decided
- February 19, 2013
- Citation
- 2013 NY Slip Op 50254(U) · 38 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Distinguished in 1 and followed in 2 later decisions (see Cited by)
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 Compas Med., P.C. v Farm Family Cas. Ins. Co. (2013 NY Slip Op 50254(U))
| Compas Med., P.C. v Farm Family Cas. Ins. Co. |
| 2013 NY Slip Op 50254(U) [38 Misc 3d 142(A)] |
| Decided on February 19, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and SOLOMON, JJ
2011-1294 K C.
against
Farm Family Casualty Ins. Co., Respondent-Appellant.
Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 31, 2011. The order, insofar as appealed from by plaintiff, denied plaintiff’s motion for summary judgment. The order, insofar as cross-appealed from by defendant, denied defendant’s cross motion for, among other things, summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is granted; as so modified, the order is affirmed, with $25 costs to plaintiff, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment upon the complaint’s 10 causes of action, and defendant cross-appeals from so much of the order as denied its cross motion for, among other things, summary judgment dismissing the complaint.
In support of its motion seeking summary judgment, plaintiff submitted an affidavit by its [*2]president which established that the claim forms had been mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The affidavit also established proof of the fact and the amount of the loss sustained, by demonstrating that the claim forms annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see 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]).
As to plaintiff’s first, second, third, fifth, sixth, seventh, eighth, and ninth causes of action, the papers submitted by defendant in support of its cross motion showed that the denials of these claims, which were based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs), were untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]). Consequently, as to these claims, defendant is precluded from asserting its defense that there had been a failure to appear for EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).
As to plaintiff’s fourth and tenth causes of action, defendant’s mere denial of receipt of those claims was insufficient to rebut the presumption of receipt established by plaintiff’s proof of mailing (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists 2005]). Thus, defendant failed to raise a triable issue of fact as to these two claims.
Defendant’s remaining contentions lack merit.
Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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.
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 precluded from asserting the EUO no-show defense to eight claims because its denials on that ground were untimely, following the Second Department rather than the First Department rule.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case
Held the provider president's affidavit established mailing of the claim forms and laid a CPLR 4518 foundation proving the fact and amount of the loss, making out the prima facie case.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (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 provider's or claimant's proof established mailing of its claim form, NF-2 or verification response
Held the provider's affidavit established mailing of the claim forms and the insurer's mere denial of receipt of two claims failed to rebut the presumption of receipt.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.
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)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846)The 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)The 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 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.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
- Top Choice Med., P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 52063(U))The provider proved two claims remained unpaid and undenied for 30 days, and the insurer's bare denial of receipt raised no triable issue.
- A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp. (2005 NY Slip Op 50088(U))MVAIC's 30-day period to pay or deny begins upon receipt of proof of claim, rather than after it qualifies an eligible insured.
Cited by
A label shows how the later decision treated this one.
- Community Med. Imaging P.C. v American Tr. Ins. Co. (2024 NY Slip Op 50301(U)) DistinguishedA no-fault arbitrator may require a mailing affidavit when documentary proof of timely claim submission is inconclusive.
- Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50401(U)) FollowedThe provider proved its first claim, while its verification-mailing affidavit raised a factual issue on whether the second claim was premature.
- Bronx Chiropractic Rehabilitation, P.C. v Progressive Ins. Co. (2020 NY Slip Op 20285) FollowedThe insurer failed to toll its claim determination period because it did not prove that it placed the scheduled verification calls.
- Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50307(U))The insurer failed to establish IME nonappearance, excessive fees, duplicate billing, or nonreceipt, and timely claim submission remained disputed.
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.
- Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51240(U))Conflicting proof of claim receipt and verification responses precluded summary judgment for either party.
- Compas Med., P.C. v Hartford Ins. Co. (2015 NY Slip Op 50784(U))The provider obtained summary judgment on the fourth, fifth and tenth causes of action because the insurer failed to deny those claims timely.
- Compas Med., P.C. v Farmington Cas. Co. (2016 NY Slip Op 50925(U))The insurer established outstanding verification for one claim and timely mailing of IME nonappearance denials for the remaining claims.
- Compas Med., P.C. v Geico Ins. Co. (2014 NY Slip Op 51259(U))The provider failed to establish its prima facie case, but the insurer also failed to obtain dismissal on its three defenses.