February 19, 2013
Infinity Health Prods., Ltd. v Travelers Ins. Co. (2013 NY Slip Op 50253(U))
https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-travelers-ins-co-2013-ny-slip-op50253u/
- Decided
- February 19, 2013
- Citation
- 2013 NY Slip Op 50253(U) · 38 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
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 Infinity Health Prods., Ltd. v Travelers Ins. Co. (2013 NY Slip Op 50253(U))
| Infinity Health Prods., Ltd. v Travelers Ins. Co. |
| 2013 NY Slip Op 50253(U) [38 Misc 3d 142(A)] |
| Decided on February 19, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-863 Q C.
against
Travelers Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 17, 2011, deemed from a judgment of the same court entered March 1, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the February 17, 2011 order as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint, awarded plaintiff the principal sum of $501.50.
ORDERED that the judgment is reversed, with $30 costs, so much of the
February 17, 2011 order as granted the branch of plaintiff’s motion seeking summary
judgment on so much of the complaint as sought to recover upon the bill for
$501.50 and denied the branch of defendant’s cross motion seeking summary judgment
dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is
denied, and that branch of defendant’s cross motion is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the [*2]complaint on the ground that all three bills at issue had been timely and properly denied based on plaintiff’s failure to appear for scheduled examinations under oath (EUOs) on September 4, 2009 and September 23, 2009. The Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s first two bills, implicitly finding that defendant had proved that the EUOs had been properly scheduled and that plaintiff had failed to appear. However, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon the last bill, for $501.50, on the ground that defendant had failed to issue two scheduling letters addressing the date of service for that bill.
The claim for $501.50 was denied by defendant within 30 days of its receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; see also 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]) on the ground that plaintiff had failed to appear for the two properly scheduled EUOs that had been previously requested by defendant with regard to the same accident and the same assignor. Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, this claim was timely and properly denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Contrary to the finding of the Civil Court, it was not necessary for defendant to issue new scheduling letters addressing this particular bill (id.).
Accordingly, the judgment is reversed, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s is denied, and that branch of defendant’s cross motion is granted.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013
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 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 did not need new scheduling letters for a later bill, since the provider had already failed to appear for two properly scheduled EUOs for the same accident and assignor.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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 last bill was timely and properly denied, within 30 days of receipt under 65-3.8 (a), on the ground of the provider's earlier nonappearance at two properly scheduled EUOs.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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 (rules on the question, but another ground decided the case)
Found the claim for the last bill had been denied within 30 days of receipt, citing the standard-office-practice mailing authorities.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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)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.
- ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U)) FollowedA follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
Similar decisions
- Infinity Health Prods., Ltd. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 52396(U))The provider's action was premature because timely verification requests remained unanswered.
- Infinity Health Prods. Ltd. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 50774(U))The provider's action was premature because it failed to respond to timely verification requests and follow-up requests.
- Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51955(U))The insurer established the assignor's IME nonappearance and timely mailing of scheduling letters and denials; opposition raised no triable issue.
- Infinity Health Prods., Ltd. v Zurich Ins. Co. (2008 NY Slip Op 51869(U))The insurer established that it had received no claims for the accident alleged in the complaint, and the provider failed to rebut that showing.
- Infinity Health Prods. v Amex Assur. Co. (2008 NY Slip Op 51233(U))The provider's billing manager's affidavit failed to establish a business-records foundation for its summary judgment documents.