March 4, 2004

Kings Med. Supply Inc. v Geico Ins. (2004 NY Slip Op 50904(U))

https://www.beynensonlaw.com/case-law/kings-med-supply-inc-v-geico-ins-2004-ny-slip-op-50904u/

Court: Appellate Term, Second Department
Decided: March 4, 2004
Citation: 2004 NY Slip Op 50904(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Verification requests Timeliness and preclusion

Cite as

Kings Med. Supply Inc. v Geico Ins., 2004 NY Slip Op 50904(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2004)

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 insurer's EUO demands did not toll the 30-day claim period because the applicable regulations imposed no EUO requirement. The provider sought payment for medical supplies furnished in 2001. Under former 11 NYCRR 65.15 (d) (3), an eligible injured person had to submit to medical examinations, but the EUO requirement in 11 NYCRR 65-3.5 (e) did not take effect until April 5, 2002. The assignor therefore had no obligation to attend the requested EUO. Applying Insurance Law § 5106 (a), the Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees.

Reported in New York Official Reports at Kings Med. Supply Inc. v Geico Ins. (2004 NY Slip Op 50904(U))

[*1]

Kings Med. Supply Inc. v GEICO Ins.

2004 NY Slip Op 50904(U)

Decided on March 4, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 4, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
NO. 2003-500 K C

KINGS MEDICAL SUPPLY INC., a/a/o Lakesha Barnes, Appellant,
against
GEICO INSURANCE, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County

(J. Sullivan, J.), dated November 27, 2002, as denied its motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $795 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. In our opinion, plaintiff’s motion for summary judgment should have been granted.
The Insurance Regulation in effect in 2001, when the medical supplies were provided, was section 65.15 (d) (3) which stated that the eligible injured person shall submit to medical examinations when, and as often as, the company may reasonably require. There was no provision requiring the eligible person to appear for an examination under oath (EUO) until the following year, when the new regulation became effective on April 5, 2002 (11 NYCRR 65-3.5 [e]; A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]), and, thus, defendant’s EUO demands did not toll the 30-day period in which an insurer must act upon a claim or be precluded from most defenses (Insurance Law § 5106 [a]; Central Gen Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Since there was no requirement that plaintiff’s assignor appear for an examination under oath as requested by defendant, plaintiff is entitled to summary judgment.

The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a]; 11 NYCRR 65.17 [b] [6]; 65.15 [*2][h] [1]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: March 04, 2004

Cited by

A label shows how the later decision treated this one.

Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221) FollowedEUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 25336) FollowedThe insurer's investigator affidavit raised a triable coverage issue based on a founded belief that the collision furthered insurance fraud.

Similar decisions

King’S Med. Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50401(U))An insurer cannot deny a claim for EUO nonappearance under the former regulation by invoking a policy's cooperation clause.
King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 51685(U))Failure to attend an IME scheduled before the insurer receives the provider's claim is not a proper basis for denying no-fault benefits.
Ocean Diagnostic Imaging v Geico Ins. (2004 NY Slip Op 50511(U))The insurer's EUO requests did not toll the 30-day denial period because the applicable regulation did not require EUOs. The provider established its prima facie entitlement to assigned no-fault benefits through proper proof of the claim and amount of loss under Insurance Law § 5106 (a).
Amaze Med. Supply Inc. v GEICO Ins. (2005 NYSlipOp 51053(U))The insurer's unsworn peer review report was inadmissible and failed to rebut the provider's prima facie entitlement to payment.
A.B. Med. Servs. PLLC Royalton Chiropractic P.C. v Lumbermens Mut. Cas. Co. (2003 NY Slip Op 51392(U))An EUO request does not toll the 30-day payment-or-denial period under the no-fault regulation governing services rendered in 2001.