November 6, 2020
ESA Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2020 NY Slip Op 51324(U))
https://www.beynensonlaw.com/case-law/esa-med-supply-inc-v-nationwide-affinity-ins-co-of-am-2020-ny-slip-op51324u/
- Decided
- November 6, 2020
- Citation
- 2020 NY Slip Op 51324(U) · 69 Misc 3d 138(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 ESA Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2020 NY Slip Op 51324(U))
| ESA Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. |
| 2020 NY Slip Op 51324(U) [69 Misc 3d 138(A)] |
| Decided on November 6, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1599 K C
against
Nationwide Affinity Ins. Co. of America, Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Law Office of Kevin J. Philbin (Ivy Cherian of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered May 24, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to establish that the initial and follow-up letters scheduling an EUO had been timely mailed to plaintiff’s assignor at the address set forth by plaintiff on its bills (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In addition, the contemporaneous affirmations executed by defendant’s counsel demonstrated that plaintiff’s assignor had failed to appear for either of the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Finally, plaintiff’s argument that the affidavit submitted by defendant in order to prove that the denial of claim forms had been timely mailed should not have been considered because the affidavit did not comply with Alabama law since it was missing an embossed notarial seal and, thus, it did not comply with Real Property Law § 299-a [*2]and CPLR 2309 (c), lacks merit, as a review of the record establishes that an embossed notarial seal was affixed to the affidavit.
Accordingly, the order is affirmed.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020
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 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
Held the insurer proved timely mailing of EUO letters to the address on plaintiff's bills, and rejected the objection to its denial-mailing affidavit because the embossed notarial seal was affixed.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the insurer proved the EUO letters were timely mailed to the address on plaintiff's bills and counsel's contemporaneous affirmations proved the assignor failed to appear for both EUOs.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (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)
Rejected the challenge to the affidavit proving timely mailing of the denials, leaving the timely denial on the EUO no-show ground established.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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.
- Sunlight Med. Care, P.C. v Esurance Ins. Co. (2015 NY Slip Op 51410(U)) FollowedThe insurer properly sent EUO notices to the address supplied on the provider's bills and the assignor's no-fault and assignment forms.
- 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
- AB Quality Health Supply Corp. v Nationwide Ins. (2022 NY Slip Op 50558(U))The insurer established timely mailing of EUO scheduling letters and the assignor's failure to appear, warranting dismissal.
- Longevity Med. Supply, Inc. v Nationwide Ins. (2020 NY Slip Op 51133(U))An assignor must attend a requested EUO whether the insurer demands it before or after submission of the claim form.
- Spring Rehab PT P.C. v Nationwide Affinity Ins. Co. (2022 NY Slip Op 51268(U))The insurer's affidavits established timely mailing of EUO notices and denials and the assignor's failure to appear for the EUOs. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
- Right Aid Med. Supply Corp. v Nationwide Ins. (2013 NY Slip Op 51746(U))The insurer lost its EUO toll because its delay notice failed to identify the party from whom verification was requested.
- ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50795(U))The insurer established timely mailing of the assignor's EUO scheduling letters through its standard office practices and procedures.