July 12, 2013
Eagle Surgical Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 51265(U))
https://www.beynensonlaw.com/case-law/eagle-surgical-supply-inc-v-geico-gen-ins-co-2013-ny-slip-op51265u/
- Decided
- July 12, 2013
- Citation
- 2013 NY Slip Op 51265(U) · 40 Misc 3d 134(A)
- Posture
- Trial
- Outcome
- Provider prevailed
- Legal questions
- No-show defense: insurer's proof (see the maps)
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 Eagle Surgical Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 51265(U))
| Eagle Surgical Supply, Inc. v GEICO Gen. Ins. Co. |
| 2013 NY Slip Op 51265(U) [40 Misc 3d 134(A)] |
| Decided on July 12, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and RIOS, JJ
2011-2587 K C.
against
GEICO General Insurance Co., Respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Helen C. Sturm, J.H.O.), entered July 26, 2011. The judgment, after a nonjury trial, dismissed the complaint.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees.
In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue for a nonjury trial was whether plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). Following the trial, the Civil Court found that defendant had established that it had mailed IME notices and that the assignor had failed to appear for the examinations, and that plaintiff had failed to rebut defendant’s showing. Plaintiff appeals from the judgment dismissing the complaint.
Defendant’s sole witness at trial was the scheduling supervisor for Empire Stat, an independent company which, the witness explained, scheduled IMEs and mailed IME notices for [*2]defendant. The witness testified that, based upon his review of the file, he had determined that plaintiff’s assignor had not appeared for two scheduled IMEs. Plaintiff correctly argues that defendant failed to submit evidence from a person with personal knowledge of the alleged nonappearances (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, since defendant did not meet its burden at trial, judgment should have been awarded in favor of plaintiff.
Accordingly, the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Aliotta, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 12, 2013
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.
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
Reversed a trial judgment for the insurer because its only witness, a scheduling supervisor relying on his review of the file, lacked personal knowledge of the assignor's nonappearances at the IMEs.
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.
Similar decisions
- Eagle Surgical Supply, Inc. v Allstate Fire & Cas. Ins. Co. (2014 NY Slip Op 50464(U))The insurer failed to establish a timely denial based on EUO nonappearance because it did not prove when it received the claims.
- 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 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 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.
- LDE Med. Servs., P.C. v Interboro Ins. Co. (2011 NY Slip Op 50946(U))The insurer failed to submit admissible proof of IME nonappearance with its cross motion, and proof first offered in reply was improper.