November 16, 2018

Jamaica Wellness Med., P.C. v ELRAC, Inc. (2018 NY Slip Op 51637(U))

https://www.beynensonlaw.com/case-law/jamaica-wellness-med-p-c-v-elrac-inc-2018-ny-slip-op-51637u/

Court: Appellate Term, Second Department
Decided: November 16, 2018
Citation: 2018 NY Slip Op 51637(U) · 61 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof · No-show: coverage defense or precludable? (see the maps)

Cite as

Jamaica Wellness Med., P.C. v ELRAC, Inc., 61 Misc 3d 142(A), 2018 NY Slip Op 51637(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.

The self-insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed on mailing and nonappearance proof. The Appellate Term, Second Department, found timely mailing of EUO notices and denials and the provider's nonappearance established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider raised no triable factual issue.

Reported in New York Official Reports at Jamaica Wellness Med., P.C. v ELRAC, Inc. (2018 NY Slip Op 51637(U))

[*1]

Jamaica Wellness Med., P.C. v ELRAC, Inc.

2018 NY Slip Op 51637(U) [61 Misc 3d 142(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2016-1263 K C

Jamaica Wellness Medical, P.C., as Assignee of Anthony Joseph, Appellant,

against

ELRAC, Inc., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Smith & Brink, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 12, 2016. 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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant’s moving papers demonstrated that defendant had timely mailed both the EUO scheduling letters and the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff’s opposing papers failed to raise a triable issue of fact, the Civil Court properly granted defendant’s motion.

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.

Proof of mailing

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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 challenge and held the insurer's moving papers proved timely mailing of both the EUO scheduling letters and the denial of claim forms.

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

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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 mailing of the EUO scheduling letters and the provider's failure to appear, and the provider raised no triable issue, so dismissal was proper.

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.

No-show: coverage defense or precludable?

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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 insurer showed its denial of claim forms were timely mailed, treating a timely denial as part of the EUO no-show defense it established.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decision

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.

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.

Similar decisions

Eastcoast Metro. Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51872(U))The defendant's summary judgment dismissal for EUO nonappearances was reversed because mailing to the correct address was not established.
Jamaica Dedicated Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51493(U))The insurer's summary judgment motion on claims denied for EUO nonappearance was granted, and the provider's cross motion was denied.
Compas Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51019(U))The defendant established the assignor's EUO nonappearances and a presumption of timely mailing of the denial forms.
Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 50826(U))The self-insurer established timely mailing of its denial, and the provider's remaining argument was raised for the first time on appeal.
Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U))The insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed.