September 21, 2016

Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51377(U))

https://www.beynensonlaw.com/case-law/cpm-surgical-supply-inc-v-allstate-prop-cas-ins-co-2016-ny-slip-op51377u/

Court: Appellate Term, Second Department
Decided: September 21, 2016
Citation: 2016 NY Slip Op 51377(U) · 53 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion EUO no-show
Legal questions: No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 53 Misc 3d 131(A), 2016 NY Slip Op 51377(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 failed to establish timely mailing of the denial supporting its provider EUO nonappearance defense. The provider appealed an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits. Although the insurer's motion relied on the provider's failure to attend duly scheduled EUOs, its affidavits did not sufficiently describe a standard office practice or procedure ensuring that the denial form had been timely mailed. The insurer therefore failed to demonstrate entitlement to summary judgment. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.

Reported in New York Official Reports at Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51377(U))

[*1]

CPM Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co.

2016 NY Slip Op 51377(U) [53 Misc 3d 131(A)]

Decided on September 21, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 21, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1261 K C

CPM Surgical Supply, Inc., as Assignee of SHOMBE HEMPFIELD, Appellant,
against
Allstate Property & Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 21, 2014. 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. Defendant’s motion was based on plaintiff’s failure to appear for duly scheduled examinations under oath.

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: September 21, 2016

Legal questions (2)

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.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer's EUO no-show defense failed on summary judgment because its affidavits did not set forth a standard office practice ensuring that the denial of claim form had been timely mailed.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decision

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's affidavits did not sufficiently set forth a standard office practice ensuring timely mailing of its denial, so its EUO no-show summary judgment motion failed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (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.

Similar decisions

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.
Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2018 NY Slip Op 50775(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50319(U))The provider's objections to the EUO scheduling letters were not heard because it did not claim to have responded to the requests.
Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U))The provider's challenges to the insurer's mailing affidavits were raised for the first time on appeal and were unpreserved.
Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co. (2019 NY Slip Op 51617(U))The insurer established timely EUO notices, the assignor's failure to appear twice, and timely denials based on those nonappearances.