July 5, 2011
Corona Hgts. Med., P.C. v Lancer Ins. Co. (2011 NY Slip Op 51293(U))
https://www.beynensonlaw.com/case-law/corona-hgts-med-p-c-v-lancer-ins-co-2011-ny-slip-op-51293u/
- Decided
- July 5, 2011
- Citation
- 2011 NY Slip Op 51293(U) · 32 Misc 3d 128(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 Corona Hgts. Med., P.C. v Lancer Ins. Co. (2011 NY Slip Op 51293(U))
| Corona Hgts. Med., P.C. v Lancer Ins. Co. |
| 2011 NY Slip Op 51293(U) [32 Misc 3d 128(A)] |
| Decided on July 5, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-2162 K C.
against
Lancer Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered July 17, 2009. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the complaint as to claims totaling $1,092.93 for services rendered November 23, 2005 through December 7, 2005.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear at scheduled examinations under oath (EUOs). The Civil Court granted the motion to the extent of dismissing claims totaling $1,092.93 for services rendered November 23, 2005 through December 7, 2005, and plaintiff appeals.
A review of the record indicates that defendant’s motion papers were sufficient to establish that the letters scheduling the EUOs had been timely mailed in accordance with the standard office practices and procedures of the law firm retained by defendant to conduct the EUOs and that the claim denial form, which denied the claims in question on the ground of failure to appear for EUOs, had been timely mailed in accordance with defendant’s standard office practices and procedures (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 demonstrated that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since the appearance of [*2]an eligible injured person’s assignee at an EUO upon a proper request is a condition precedent to the assignee’s right to recover under the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), defendant was entitled to summary judgment dismissing the claims in question.
Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 05, 2011
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.
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 provider's EUO no-show through timely mailed scheduling letters and proof of nonappearance, entitling it to dismissal of the 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.
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)
Upheld dismissal on the EUO no-show defense after finding, among its elements, that the denial based on the nonappearance was timely mailed.
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)
Held the EUO law firm's and the insurer's office-practice proof sufficient to establish timely mailing of the EUO scheduling letters and the denial.
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) FollowedThe 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) FollowedAn 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.
- W & Z Acupuncture, P.C. v Amex Assur. Co. (2009 NY Slip Op 51732(U)) FollowedThe insurer's counsel's affirmation established that the provider's owner failed to appear for duly scheduled EUOs. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the owner's nonappearance.
Similar decisions
- Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. (2010 NY Slip Op 50716(U))The insurer established the provider's failure to appear for duly scheduled EUOs through an affirmation from its retained counsel.
- Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51455(U))The insurer established timely mailing of EUO notices and denials, and the provider's failure to attend the scheduled EUOs. The provider opposed the insurer's summary judgment motion and cross-moved for judgment, challenging notice mailing and proof of nonappearance.
- All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 52067(U))The insurer established mailing of the EUO notices and the assignor's failure to appear, warranting dismissal of the providers' claims.
- Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U))The insurer's summary judgment dismissing the complaint for the provider's EUO nonappearance was affirmed.