May 18, 2015
Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))
https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-maya-assur-co-2015-ny-slip-op-50786u/
- Court
- Appellate Term, Second Department
- Decided
- May 18, 2015
- Citation
- 2015 NY Slip Op 50786(U) · 47 Misc 3d 151(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 Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))
[*1]| Delta Diagnostic Radiology, P.C. v Maya Assur. Co. |
| 2015 NY Slip Op 50786(U) [47 Misc 3d 151(A)] |
| Decided on May 18, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-100 Q C
against
Maya Assurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered December 6, 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 defendant’s cross motion for summary judgment 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.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) of plaintiff’s assignor had been properly addressed and 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 a result, defendant failed to demonstrate that the IMEs had been properly scheduled, and thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015
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.
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's affidavit failed to establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit.
Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 246 (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 proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer's affidavit did not set forth a standard office practice or procedure ensuring the IME scheduling letters were properly addressed and mailed.
Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 256 (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 failed to prove the scheduling letters were mailed or properly addressed
Held the insurer failed to show the IMEs were properly scheduled, and thus the assignor's nonappearance, because its affidavit did not describe a mailing practice ensuring proper addressing and mailing of the letters.
Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 111 (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.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430)A provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
- 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.
- 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.
Cited by
- Metro Pain Specialist, P.C. v ELRAC, Inc. (2020 NY Slip Op 51341(U))The defendant failed to prove proper mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
- Parisien v Maya Assur. Co. (2018 NY Slip Op 50766(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
- JFL Med. Care, P.C. v ELRAC, Inc. (2021 NY Slip Op 50434(U))The defendant failed to prove mailing of the IME scheduling letters, defeating its summary judgment motion based on nonappearance.
- Gl Acupuncture, P.C. v Maya Assur. Co. (2016 NY Slip Op 50310(U))The insurer failed to establish duly scheduled IMEs because its affidavit did not adequately prove mailing of the notices.
- Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2016 NY Slip Op 50308(U))The insurer failed to prove proper mailing of IME notices, and the provider failed to establish prima facie entitlement to summary judgment.
- Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co. (2015 NY Slip Op 51721(U))The insurer's affidavit failed to establish office procedures ensuring proper addressing and mailing of IME scheduling letters.
Similar decisions
- Delta Diagnostic Radiology, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51676(U))The insurer failed to prove EUO or IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment.
- Delta Diagnostic Radiology, P.C. v Auto One Ins. Co. (2015 NY Slip Op 51032(U))The insurer failed to prove IME nonappearances because its healthcare professionals' sworn statements did not demonstrate personal knowledge.
- Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51672(U))The insurer established timely mailing of IME notices and denials and the assignor's failure to appear for scheduled IMEs. In the provider's action for assigned no-fault benefits, the insurer proved that the scheduling letters and denial forms had been timely mailed and that the assignor had not attended the duly scheduled IMEs. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the nonappearances constituted failure to comply with a condition precedent to coverage.
- Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51711(U))The insurer established timely mailing of EUO notices, the assignor's nonappearance and timely denials based on that nonappearance.
- Delta Diagnostic Radiology, P.C. v Esurance (2015 NY Slip Op 51212(U))The insurer established timely EUO notices, the assignor's nonappearance at duly scheduled EUOs and timely denials on that ground.