December 17, 2014
Compas Med., P.C. v Nationwide Ins. (2014 NY Slip Op 51824(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-nationwide-ins-2014-ny-slip-op-51824u/
- Decided
- December 17, 2014
- Citation
- 2014 NY Slip Op 51824(U) · 46 Misc 3d 131(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 Compas Med., P.C. v Nationwide Ins. (2014 NY Slip Op 51824(U))
| Compas Med., P.C. v Nationwide Ins. |
| 2014 NY Slip Op 51824(U) [46 Misc 3d 131(A)] |
| Decided on December 17, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1693 K C
against
Nationwide Ins., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered June 5, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s fourth cause of action is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
In support of its motion for summary judgment, plaintiff established its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]). However, with respect to plaintiff’s fourth cause of action, defendant sufficiently described its procedures for the receipt of mail and stated that defendant has no record of having received this claim. By rebutting the presumption of receipt, defendant raised a triable issue of fact as to whether this claim had been submitted to defendant (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]). Thus, neither party was entitled to summary judgment as to this cause of action.
With respect to plaintiff’s remaining causes of action, defendant established that independent medical examination (IME) and examination under oath (EUO) scheduling letters, and the denial of claim forms, which denied the claims on the ground that plaintiff’s assignor had failed to appear for such examinations, had been timely mailed (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]). As defendant further demonstrated that plaintiff’s assignor did not appear for the duly scheduled IMEs and EUOs and, thus, that plaintiff’s assignor had failed to comply with conditions precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), the Civil Court properly granted defendant summary judgment dismissing so much of the complaint as sought to recover upon those causes of action.
Plaintiff’s remaining contention lacks merit.
Accordingly, the order is modified by providing that the branch of defendant’s motion [*2]seeking summary judgment dismissing plaintiff’s fourth cause of action is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
Legal questions (4)
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: Different mailing results for different documents or claims in one decision
Held the insurer proved timely mailing of its scheduling letters and denials, while its described mail-receipt procedures and lack of record rebutted the presumption of receipt of one claim, raising a triable issue.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 55 (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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the insurer established timely mailing of the IME and EUO scheduling letters and the assignor's nonappearance, so the assignor failed to comply with conditions precedent to coverage.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the insurer entitled to dismissal on its IME/EUO no-show defense because it also showed that its denials on that ground were timely mailed.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the provider established its prima facie case, but summary judgment was defeated by the insurer's no-show defense and, for one claim, its proof of non-receipt.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
- Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 24145) FollowedThe provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests.
- 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.
- 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.
Similar decisions
- Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51667(U))The insurer's untimely denial precluded its EUO and IME nonappearance defenses to the third cause of action.
- 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.
- 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. (2013 NY Slip Op 50762(U))The provider established its prima facie case, and the insurer failed to prove timely mailing of denials needed to avoid preclusion.
- 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.