November 19, 2015

Compas Med., P.C. v MVAIC (2015 NY Slip Op 51705(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-mvaic-2015-ny-slip-op-51705u/

Court: Appellate Term, Second Department
Decided: November 19, 2015
Citation: 2015 NY Slip Op 51705(U) · 49 Misc 3d 148(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Compas Med., P.C. v MVAIC, 49 Misc 3d 148(A), 2015 NY Slip Op 51705(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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.

MVAIC failed to prove the assignor's nonappearance at the first scheduled EUO through admissible evidence. MVAIC submitted a sworn stenographic transcript establishing nonappearance at the second scheduled EUO, but its proof concerning the first was deficient. It therefore failed to establish the EUO-nonappearance defense in opposition to the provider's motion and in support of its own cross motion. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying MVAIC's cross motion dismissing the complaint. Because MVAIC raised no appellate issue concerning the provider's prima facie case, the court did not pass on the propriety of that determination.

Reported in New York Official Reports at Compas Med., P.C. v MVAIC (2015 NY Slip Op 51705(U))

[*1]

Compas Med., P.C. v MVAIC

2015 NY Slip Op 51705(U) [49 Misc 3d 148(A)]

Decided on November 19, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1359 K C

Compas Medical, P.C. as Assignee of TEDDY RUTH, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered January 29, 2013. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment, and denied defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

In opposition to plaintiff’s motion and in support of defendant’s cross motion for summary judgment dismissing the complaint, defendant annexed a sworn stenographic transcript which showed that plaintiff’s assignor had failed to appear for the second scheduled EUO. However, defendant failed to demonstrate, by proof in admissible form, that plaintiff’s assignor had failed to appear for the first duly scheduled EUO. As a result, defendant failed to establish its defense that plaintiff’s assignor had failed to appear for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; see also New Way Med. Supply Corp. v MVAIC, 46 Misc 3d 129[A], 2014 NY Slip Op 51805[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

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

Decision Date: November 19, 2015

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.

No-show defense: insurer's proof

Open the full map

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 defense not established because, although a stenographic transcript showed nonappearance at the second EUO, there was no admissible proof the assignor failed to appear for the first.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 79 (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.
New Way Med. Supply Corp. v MVAIC (2014 NY Slip Op 51805(U))MVAIC failed to establish the assignor's nonappearance at the first scheduled EUO, entitling the provider to summary judgment.

Similar decisions

Compas v MVAIC (2019 NY Slip Op 51247(U))MVAIC's motion for summary judgment dismissing the provider's assigned no-fault claims was granted and the provider's cross motion was denied.
Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51671(U))The insurer proved timely mailing of EUO notices and denials and the assignor's nonappearance, supporting dismissal of the disputed claims.
Compas Med., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51568(U))The insurer's attorney failed to establish the provider's nonappearance at both scheduled EUOs through personal knowledge or other proper proof.
Compas Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51019(U))The defendant established the assignor's EUO nonappearances and a presumption of timely mailing of the denial forms.
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51679(U))The insurer proved IME nonappearance on six claims and rebutted the presumption of receipt of a seventh claim.