October 26, 2015

Compas Med., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51568(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-travelers-ins-co-2015-ny-slip-op51568u/

Court: Appellate Term, Second Department
Decided: October 26, 2015
Citation: 2015 NY Slip Op 51568(U) · 49 Misc 3d 139(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 Travelers Ins. Co., 49 Misc 3d 139(A), 2015 NY Slip Op 51568(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.

The insurer's attorney failed to establish the provider's nonappearance at both scheduled EUOs through personal knowledge or other proper proof. The Civil Court granted the insurer summary judgment dismissing the assigned no-fault claims based on the provider's failure to attend duly scheduled EUOs. The sworn statement from the attorney assigned to conduct the EUOs did not adequately prove both nonappearances. The insurer therefore failed to establish entitlement to dismissal as a matter of law. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Compas Med., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51568(U))

[*1]

Compas Med., P.C. v Travelers Ins. Co.

2015 NY Slip Op 51568(U) [49 Misc 3d 139(A)]

Decided on October 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-347 K C

Compas Medical, P.C. as Assignee of MICKAEL LOUIS, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered November 30, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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

While defendant submitted a sworn statement by the attorney who was assigned to conduct the EUOs, plaintiff correctly argues on appeal that counsel failed to demonstrate, by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), that plaintiff had failed to appear for both of the EUOs. Therefore, defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Accordingly, the order is reversed and defendant’s motion is denied.

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

Decision Date: October 26, 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 sworn statement of the attorney assigned to conduct the EUOs failed to show by personal knowledge or other appropriate means that the provider missed both EUOs, so summary judgment for the insurer was denied.

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

Of the 851 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.
Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Quality Health Prods. v Hertz Claim Mgt. Corp (2012 NY Slip Op 51722(U))The insurer proved the assignors' IME nonappearances through affidavits from a chiropractor and orthopedist with personal knowledge.

Similar decisions

Compas v Travelers Ins. Co. (2018 NY Slip Op 50821(U))The insurer established the provider's EUO nonappearances through an affirmation from the attorney present to conduct the EUOs. The provider challenged the sufficiency of the affirmation in its action for assigned no-fault benefits.
Compas Med., P.C. v Travelers Insurance Company (2016 NY Slip Op 51424(U))The insurer proved a verification defense to one claim but lacked personal-knowledge proof of EUO nonappearance for seven others.
PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.
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 Allstate Ins. Co. (2017 NY Slip Op 51842(U))The insurer failed to establish timely mailing of its denials and was denied summary judgment on its EUO nonappearance defense.