June 17, 2022
Ezra Supply, Inc. v State Farm Mut. Auto Ins. Co. (2022 NY Slip Op 50613(U))
https://www.beynensonlaw.com/case-law/ezra-supply-inc-v-state-farm-mut-auto-ins-co-2022-ny-slip-op50613u/
- Decided
- June 17, 2022
- Citation
- 2022 NY Slip Op 50613(U) · 75 Misc 3d 142(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 Ezra Supply, Inc. v State Farm Mut. Auto Ins. Co. (2022 NY Slip Op 50613(U))
| Ezra Supply, Inc. v State Farm Mut. Auto Ins. Co. |
| 2022 NY Slip Op 50613(U) [75 Misc 3d 142(A)] |
| Decided on June 17, 2022 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ
2021-285 K C
against
State Farm Mutual Auto Ins. Co., Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered April 1, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint.
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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contention, defendant established, prima facie, that initial and follow-up letters scheduling an EUO were timely and properly mailed in accordance with defendant’s standard office practices and procedures, as plaintiff’s assignor’s sworn statement confirmed that the address used by defendant was the proper address and neither plaintiff nor its assignor disputed assignor’s receipt of the letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, defendant established, prima facie, that plaintiff’s assignor failed to appear on either of the scheduled dates (see Celestin v 40 Empire Blvd., Inc., 168 AD3d 805 [2019]) and that the claims were timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).
Accordingly, the order is affirmed.
ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 17, 2022
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 and proper mailing of the initial and follow-up EUO letters under its office practices, as the assignor confirmed the address and receipt was undisputed.
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 mailing of the initial and follow-up EUO letters to the proper address and the assignor's failure to appear on either date.
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)
Held the insurer established prima facie that the claims were timely denied on the EUO no-show ground.
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.
Similar decisions
- T & S Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51240(U))The insurer's summary judgment based on the assignor's EUO nonappearance was affirmed after its scheduling letters were found to toll the deadline.
- Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51246(U))The insurer established timely mailing of EUO scheduling letters and denials and sufficient proof of nonappearance.
- New York Wellness PT, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50608(U))The insurer failed to prove the assignor's EUO nonappearances through personal knowledge or to establish timely denial after the alleged failures.
- 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.
- Mega Supplies Billing, Inc. v State Farm Fire & Cas. Co. (2012 NY Slip Op 51014(U))The insurer proved timely mailing of the EUO notices and denials and the provider's failure to attend either scheduled EUO. In this action for assigned first-party no-fault benefits, the provider challenged the affidavits supporting the insurer's summary judgment motion.