February 19, 2013
Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-praetorian-ins-co-2013-ny-slip-op50249u/
- Decided
- February 19, 2013
- Citation
- 2013 NY Slip Op 50249(U) · 38 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Praetorian Ins. Co. (2013 NY Slip Op 50249(U))
| Compas Med., P.C. v Praetorian Ins. Co. |
| 2013 NY Slip Op 50249(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2011-563 K C.
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 29, 2010, deemed from a judgment of the same court, entered December 13, 2010 (see CPLR 5512 [a]). The judgment, entered pursuant to the November 29, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,773.22.
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered November 29, 2010 as granted plaintiff’s motion for summary judgment and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, third, fourth, fifth, sixth, seventh and ninth causes of action is vacated, plaintiff’s motion is denied, and those branches of defendant’s cross motion are granted.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered November 29, 2010, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. After judgment was entered awarding plaintiff the principal sum of $2,773.22, defendant appealed from the order. The appeal is deemed to be from the judgment (see CPLR 5512 [a]). [*2]
In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s first, fifth, and sixth causes of action, defendant submitted an affidavit by a supervisor of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which sufficiently established that IME scheduling letters 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]). Defendant also submitted, among other things, affidavits by the doctors who were to perform the IMEs which established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant was entitled to summary judgment dismissing these causes of action (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).
In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s third, fourth, seventh and ninth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) its initial and follow-up requests for verification to plaintiff and that plaintiff had failed to provide the requested verification. In opposition, plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification. Consequently, the 30-day period within which defendant was required to pay or deny these claims did not begin to run, and plaintiff’s causes of action upon those claims are premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).
Defendant’s cross motion failed to address plaintiff’s second and eighth causes of action; therefore, defendant is not entitled to summary judgment dismissing these causes of action. However, the branches of plaintiff’s motion seeking summary judgment on these causes of action should have been denied, as plaintiff failed to establish that those claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law on so much of the complaint as sought to recover upon those claims (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the judgment is reversed, so much of the order entered November 29, 2010 as granted plaintiff’s motion for summary judgment and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, third, fourth, fifth, sixth, seventh and ninth causes of action is vacated, plaintiff’s motion is denied, and those branches of defendant’s cross motion are granted. [*3]
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013
Legal questions (5)
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: claimant did not prove the claim was overdue (not paid or timely denied)
Held the provider failed its prima facie burden on two claims because it did not show they were not denied within 30 days or that the denials were conclusory, vague or meritless.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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 proved the IME scheduling letters were timely mailed and, through the examining doctors' affidavits, that the assignor failed to appear, entitling it to dismissal of those claims.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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: Timely requests went unanswered; the claim is not overdue and the action is premature
Held four claims premature because the insurer proved timely initial and follow-up verification requests and the provider did not show it supplied the verification before suit.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (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)
Granted dismissal of the IME no-show claims after finding the insurer showed its denials on that ground were timely mailed, along with mailing of scheduling letters and nonappearance.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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 insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Found the IME scheduler's and claims examiner's affidavits sufficiently established timely mailing of the IME scheduling letters, the denials and the verification requests.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
- 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.
- Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038)The hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
- Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484)An insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
- 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.
- Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Similar decisions
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50963(U))The insurer proved its IME nonappearance defense for 13 claims but failed to establish timely denial of the fourteenth.
- 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 American Tr. Ins. Co. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.
- 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.
- Compas Med., P.C. v GEICO Ins. Co. (2014 NY Slip Op 51857(U))The insurer proved lack of medical necessity for one claim but failed to establish its payment, late-submission and fee-schedule defenses.