November 16, 2018
Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51653(U))
https://www.beynensonlaw.com/case-law/gentlecare-ambulatory-anesthesia-services-lyonel-f-paul-m-d-v-geicoins-co-2018-ny-slip-op-51653u/
- Decided
- November 16, 2018
- Citation
- 2018 NY Slip Op 51653(U) · 61 Misc 3d 143(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 Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51653(U))
| Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D. v GEICO Ins. Co. |
| 2018 NY Slip Op 51653(U) [61 Misc 3d 143(A)] |
| Decided on November 16, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1572 Q C
against
GEICO Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell 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, Queens County (Larry Love, J.), entered April 6, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d, 11th & 13th Jud Dists 2018]).
Plaintiff’s remaining contention with respect to defendant’s cross motion is not properly before this court, as this argument is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it. Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018
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.
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
Held, over the provider's challenge, that the insurer's proof gave rise to a presumption that the denial of claim form on the EUO no-show ground was timely mailed.
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.
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's proof sufficed to give rise to a presumption that the EUO scheduling letters and the denial of claim form were timely mailed.
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's proof raised a presumption the EUO scheduling letters were timely mailed, showed the provider's nonappearance, and that no objective reasons for the EUOs were required for its prima facie case.
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
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.
- 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.
- Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2018 NY Slip Op 50864(U)) FollowedAn insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for EUO nonappearance.
Similar decisions
- Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51773(U))An insurer need not state objective reasons for EUO requests to establish summary judgment based on a provider's nonappearance.
- Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2018 NY Slip Op 50837(U))The insurer established proper mailing of the EUO scheduling letters and denial form and the provider's failure to appear for EUOs. In this assigned no-fault action, the provider challenged both the mailing proof and the proof of nonappearance.
- Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))The insurer failed to establish timely denial mailing, and the provider failed to establish prima facie entitlement to payment.
- Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. (2018 NY Slip Op 50770(U))The insurer's motion for summary judgment dismissing the provider's complaint based on EUO and IME nonappearances was granted.
- Gentlecare Ambulatory Anesthesia Servs. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51152(U))The insurer's summary judgment dismissal for EUO nonappearance was affirmed after the provider's mailing challenges were rejected.