December 19, 2014
Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))
https://www.beynensonlaw.com/case-law/flatlands-med-p-c-v-travelers-ins-co-2014-ny-slip-op51856u/
- Decided
- December 19, 2014
- Citation
- 2014 NY Slip Op 51856(U) · 46 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Legal questions
- Proof of mailing · 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 Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))
| Flatlands Med., P.C. v Travelers Ins. Co. |
| 2014 NY Slip Op 51856(U) [46 Misc 3d 133(A)] |
| Decided on December 19, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-891 K C
against
Travelers Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered February 7, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through seventh causes of action are 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 granting defendant’s motion for summary judgment dismissing the complaint.
It is undisputed that the claims underlying plaintiff’s first through sixth causes of action were denied well over 30 days after they had been received by defendant. Plaintiff correctly argues on appeal that defendant failed to establish, as a matter of law, that it had properly tolled its time to pay or deny these claims (see 11 NYCRR 65—3.5 [b]). Consequently, defendant was not entitled to summary judgment dismissing these causes of action.
As to plaintiff’s seventh cause of action, defendant concedes on appeal that it untimely denied the claim upon which that cause of action is based and that, therefore, it is not entitled to [*2]summary judgment on this cause of action.
Finally, as to plaintiff’s eighth and ninth causes of action, contrary to plaintiff’s argument on appeal, the affidavits submitted by defendant were sufficient to demonstrate that the examination under oath scheduling letters and the denial of claim forms had been timely 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 plaintiff raises no other issue on appeal with respect to these claims, plaintiff has shown no basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing these causes of action.
Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through seventh causes of action are denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 19, 2014
Legal questions (2)
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
For two causes of action, held the insurer's affidavits sufficient to show timely mailing of the EUO scheduling letters and denial forms.
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 (rules on the question, but another ground decided the case)
Upheld dismissal of two causes on the EUO no-show because the scheduling letters and denials were proved timely mailed, while other claims survived for failed tolling or concededly late denials.
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.
Cited in this decision
- 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.
Similar decisions
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response.
- Parkview Med. Advanced, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51873(U))The insurer established that eight claims were premature because timely requested verification remained outstanding.
- Treka Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51411(U))The insurer established nonreceipt of one claim and outstanding verification for five others.
- Allay Med. Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 51806(U))The insurer established timely mailing of EUO scheduling letters and the denial, together with nonappearance at the scheduled EUOs. The provider appealed an order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment in an assigned no-fault action.
- Compas Med., P.C. v Travelers Insurance Company (2016 NY Slip Op 51424(U))The insurer proved a verification defense to one claim but lacked personal-knowledge proof of EUO nonappearance for seven others.