September 19, 2016
K.O. Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51367(U))
https://www.beynensonlaw.com/case-law/k-o-med-p-c-v-allstate-ins-co-2016-ny-slip-op-51367u/
- Decided
- September 19, 2016
- Citation
- 2016 NY Slip Op 51367(U) · 53 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Provider 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 K.O. Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51367(U))
| K.O. Med., P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 51367(U) [53 Misc 3d 130(A)] |
| Decided on September 19, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1013 K C
against
Allstate Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 23, 2014. The order denied 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
Contrary to defendant’s contention, the Civil Court correctly found that defendant’s moving papers failed to establish as a matter of law that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In addition, defendant’s moving papers do not demonstrate timely mailing of defendant’s denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 19, 2016
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 failed to prove the nonappearance by someone with personal knowledge
Held the insurer's moving papers failed to establish as a matter of law that the assignor failed to appear for the duly scheduled 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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial (rules on the question, but another ground decided the case)
Held the insurer's IME no-show motion also failed because its moving papers did not demonstrate timely mailing of the denial of claim forms.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (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 proof did not establish mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the insurer's moving papers did not demonstrate timely mailing of its denial of claim forms.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) FollowedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.
- 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.
Similar decisions
- K.O. Med., P.C. v Mercury Cas. Co. (2017 NY Slip Op 51158(U))The insurer failed to establish proper mailing of IME notices or appropriate application of Ground Rule 11 to the disputed claims.
- Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50922(U))The insurer failed to establish the assignor's IME nonappearance or receipt of notice of both scheduled IMEs. The provider appealed from summary judgment dismissing its assigned no-fault claims.
- K.O. Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51151(U))The defendant failed to prove the assignor's IME nonappearances because its affiants did not establish personal knowledge.
- Compas Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 51842(U))The insurer failed to establish timely mailing of its denials and was denied summary judgment on its EUO nonappearance defense.
- Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co. (2019 NY Slip Op 51617(U))The insurer established timely EUO notices, the assignor's failure to appear twice, and timely denials based on those nonappearances.