June 29, 2009
Inwood Hill Med., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51397(U))
https://www.beynensonlaw.com/case-law/inwood-hill-med-p-c-v-progressive-cas-ins-co-2009-ny-slip-op51397u/
- Decided
- June 29, 2009
- Citation
- 2009 NY Slip Op 51397(U) · 24 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Legal questions
- Claimant's prima facie case on motions · 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 Inwood Hill Med., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51397(U))
| Inwood Hill Med., P.C. v Progressive Cas. Ins. Co. |
| 2009 NY Slip Op 51397(U) [24 Misc 3d 134(A)] |
| Decided on June 29, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2008-1798 N C.
against
Progressive Casualty Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered July 2, 2008. The order denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Order modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, affirmed without costs.
In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that plaintiffs had failed to lay a foundation for the admission, as business records, of the documents annexed to their motion and that plaintiffs’ assignor had failed to appear for scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The District Court denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiffs ensued.
Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ medical biller failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment was properly denied. [*2]
With regard to defendant’s cross motion for summary judgment, while defendant asserted that it had timely denied plaintiffs’ claims on the grounds that the assignor had failed to appear at scheduled EUOs and IMEs, defendant failed to establish by proof in admissible form that the assignor had not appeared for the EUOs and IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant’s cross motion for summary judgment should have been denied.
The decision and order of this court entered herein on June 2, 2009 are hereby recalled and
vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.
Scheinkman, J., taking no part.
Decision Date: June 29, 2009
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved
Held the providers failed to make a prima facie showing because the biller's affidavit did not establish that the annexed documents were admissible under CPLR 4518.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (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 failed to prove the nonappearance by someone with personal knowledge
Held the insurer's cross motion should have been denied because it did not establish by admissible proof that the assignor failed to appear for the EUOs and IMEs.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U)) FollowedAn insurer's acknowledgment of claim receipt does not concede the admissibility of the claim forms or the facts they contain.
- 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.
Similar decisions
- Inwood Hill Med., P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51129(U))The providers' medical biller failed to establish admissibility of the supporting documents, defeating their motion for summary judgment.
- Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2009 NY Slip Op 51264(U))The insurer was precluded from asserting a workers' compensation defense because it failed to establish timely mailing of its denial.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 52067(U))The insurer established mailing of the EUO notices and the assignor's failure to appear, warranting dismissal of the providers' claims.
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 52279(U))The insurer's affidavits established timely mailing of the IME notices and denials and the assignor's failure to appear.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50954(U))An IME nonappearance defense is subject to preclusion if the insurer's denials are untimely.