April 13, 2018

Goldstar Equip., Inc. v Mercury Cas. Co. (2018 NY Slip Op 50576(U))

https://www.beynensonlaw.com/case-law/goldstar-equip-inc-v-mercury-cas-co-2018-ny-slip-op-50576u/

Court: Appellate Term, Second Department
Decided: April 13, 2018
Citation: 2018 NY Slip Op 50576(U) · 59 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? · Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Goldstar Equip., Inc. v Mercury Cas. Co., 59 Misc 3d 138(A), 2018 NY Slip Op 50576(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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.

An insurer complying with the no-fault regulations need not prove that an assignor's failure to attend scheduled EUOs was willful. The provider challenged summary judgment dismissing its assigned-benefits complaint. The insurer established timely mailing of the EUO scheduling letters and denial forms under 11 NYCRR 65-3.5 (b) and 65-3.8 (l). Its attorney's affirmation established nonappearance because the attorney was present at the court reporting office on the scheduled dates to conduct the EUOs. The Appellate Term, Second Department, affirmed the order, rejecting both the mailing challenge and the asserted requirement to establish willfulness.

Reported in New York Official Reports at Goldstar Equip., Inc. v Mercury Cas. Co. (2018 NY Slip Op 50576(U))

[*1]

Goldstar Equip., Inc. v Mercury Cas. Co.

2018 NY Slip Op 50576(U) [59 Misc 3d 138(A)]

Decided on April 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : DAVID ELLIOT, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2016-88 K C NO.

Goldstar Equipment, Inc., as Assignee of Keith Williams, Appellant,

against

Mercury Casualty Co., Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer and Douglas Mace of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro and Matthew Smith of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered September 15, 2015. 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 which granted defendant’s motion for summary judgment dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff’s assignor had failed to comply with a condition precedent to coverage, in that the assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s assertion, defendant established that the EUO scheduling letters and the denial of the claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.5 [b]; 65-3.8 [l]). The affirmation of defendant’s attorney, who had been present at the court reporting office to conduct the EUO of the assignor on the scheduled dates, was sufficient to establish that the assignor had failed to appear. To the extent that plaintiff asserts that defendant did not demonstrate that the assignor’s failure to appear was willful, we note that defendant established that defendant complied with the regulations (11 NYCRR part 65), and that there is no requirement to establish willfulness (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2011]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51419[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]).

Accordingly, the order is affirmed.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 13, 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.

No-show: coverage defense or precludable?

Open the full map

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

Rejected the provider's assertion and held the insurer established that its denials on the EUO no-show ground were timely mailed.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 457 decisions on this question in the Second Department courts and the Court of Appeals, 308 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Proof of mailing

Open the full map

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

Rejected the provider's assertion and held the insurer established that the EUO scheduling letters and the denial of claim forms were timely mailed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (this one included) are in the same category.

No-show defense: insurer's proof

Open the full map

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 timely mailed EUO letters and nonappearance through its attorney present at the scheduled EUOs, and that willfulness need not be shown where the insurer complied with the regulations.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 518 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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.
Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51419(U)) FollowedA provider that did not respond to EUO requests could not later challenge their reasonableness to defeat summary judgment.
Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092)The assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.

Cited by

A label shows how the later decision treated this one.

MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U)) FollowedEUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U)) FollowedA provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e).
Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U)) FollowedThe provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances.

Similar decisions

Metro Psychological Servs., P.C. v Mercury Cas. Co. (2015 NY Slip Op 51644(U))An EUO request issued after an assignor misses a rescheduled EUO constitutes a follow-up request under 11 NYCRR 65-3.6 (b).
Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc. (2017 NY Slip Op 50923(U))The defendant's timely mailing of the initial EUO notice tolled its time to pay or deny claims received afterward.
Greenway Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51711(U))The defendant's proof established a presumption that the denial forms were timely mailed in support of its EUO nonappearance defense.
PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.
New Way Med. Supply Corp. v American Tr. Ins. Co. (2015 NY Slip Op 50809(U))The insurer established timely mailing of EUO scheduling letters and denials, as well as the assignor's failure to appear for the EUOs. The provider moved for summary judgment to recover assigned no-fault benefits, and the insurer cross-moved to dismiss based on the assignor's nonappearance.