March 17, 2014

Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))

https://www.beynensonlaw.com/case-law/eagle-surgical-supply-inc-v-allstate-fire-cas-ins-co-2014-ny-slip-op50464u/

Court: Appellate Term, Second Department
Decided: March 17, 2014
Citation: 2014 NY Slip Op 50464(U) · 43 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? (see the maps)

Cite as

Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co., 43 Misc 3d 126(A), 2014 NY Slip Op 50464(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 a timely denial based on EUO nonappearance because it did not prove when it received the claims. The insurer obtained summary judgment dismissing the provider's action on the ground that the provider failed to attend scheduled EUOs. Its submissions, however, contained no admissible evidence establishing receipt dates for the claim forms. It therefore failed to demonstrate tolling of the 30-day period to pay or deny or timely mailing of its denial. Following Westchester Med. Ctr. v Lincoln Gen. Ins. Co., the court found that the insurer had not established freedom from preclusion of its nonappearance defense. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, and denied the insurer's motion.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))

[*1]

Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co.

2014 NY Slip Op 50464(U) [43 Misc 3d 126(A)]

Decided on March 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-122 Q C.

Eagle Surgical Supply, Inc. as Assignee of ASIF BAXTER, Appellant,
against
Allstate Fire & Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered December 14, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint

ORDERED that the judgment is reversed, with $30 costs, the order entered November 17, 2011 is vacated, and defendant’s motion for summary judgment 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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant’s motion for summary judgment was based upon plaintiff’s failure to appear for scheduled examinations under oath (EUOs). However, defendant failed to proffer evidence in admissible form establishing when it had received plaintiff’s claim forms (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 32 Misc 3d 136[A], 2011 NY Slip Op 51528[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant did not establish that it had tolled the 30-day period within which defendant was required to pay or deny the claims so that it may be determined, as a matter of law, that its NF-10 denial of claim form had been timely mailed. As defendant has not demonstrated that it is not precluded from raising its defense that plaintiff failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009] cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]), its motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, the order entered November 17, 2011 is vacated, and defendant’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014

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: 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 did not show it was not precluded from its EUO no-show defense, because without proof of when it received the claims it could not show tolling or a timely denial.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U)) FollowedA denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.

Similar decisions

Eagle Surgical Supply, Inc. v Allstate Ins. Co. (2014 NY Slip Op 51798(U))The provider's objections to EUO requests 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.
Eagle Surgical Supply, Inc. v Allstate Indem. Co. (2013 NY Slip Op 52012(U))The insurer's EUO request was nine days late, but its denial remained timely within the resulting 21-day period.
Eagle Surgical Supply, Inc. v Farmington Cas. Co. (2018 NY Slip Op 51642(U))The insurer's summary judgment dismissing the provider's claims for failure to attend duly scheduled EUOs was affirmed.
Eagle Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50772(U))The provider's argument that the insurer had not proved a policy provision authorizing EUOs was rejected.