September 22, 2017
Laga v American Commerce Ins. Co. (2017 NY Slip Op 51250(U))
https://www.beynensonlaw.com/case-law/laga-v-american-commerce-ins-co-2017-ny-slip-op-51250u/
- Decided
- September 22, 2017
- Citation
- 2017 NY Slip Op 51250(U) · 57 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Split result
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 Laga v American Commerce Ins. Co. (2017 NY Slip Op 51250(U))
| Laga v American Commerce Ins. Co. |
| 2017 NY Slip Op 51250(U) [57 Misc 3d 134(A)] |
| Decided on September 22, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1973 Q C
against
American Commerce Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 30, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the sixth cause of action is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.
Plaintiff correctly argues that defendant failed to establish that it had timely denied the claim underlying the sixth cause of action. Thus, the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action should have been denied. However, plaintiff is not entitled to summary judgment on this cause of action, as plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of this claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], [*2]2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
The order is affirmed as to the remaining causes of action for the reason stated in Laga, as Assignee of Noel, Jocelyn v American Commerce Ins. Co. (— Misc 3d &mdash, 2017 NY Slip Op — [appeal No. 2014-2015 Q C], decided herewith).
Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the sixth cause of action is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
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.
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
Held the insurer's EUO no-show defense failed as to the sixth claim because the insurer did not establish that it had timely denied that claim, so its cross motion on that cause of action was denied.
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)
Held the claimant not entitled to summary judgment on the remaining claim because it did not establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Similar decisions
- Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U))The insurer's summary judgment dismissing the complaint for the provider's EUO nonappearance was affirmed.
- Laga v Allstate Ins. Co. (2018 NY Slip Op 50416(U))The insurer failed to establish timely mailing of its denials and therefore did not show that its defenses escaped preclusion.
- Laga v Country Wide Ins. Co. (2017 NY Slip Op 51155(U))The insurer's proof supported a presumption of proper denial mailing, and the provider's remaining challenge was first raised on appeal.
- Adelaida M. Laga, Pt v 21st Century Ins. Co. (2016 NY Slip Op 51623(U))The insurer's summary judgment motion dismissing the first four causes of action was granted based on timely mailed denials.
- Laga v Amica Mut. Ins. Co. (2017 NY Slip Op 51136(U))The insurer failed to establish mailing of the assignor's IME scheduling letters and was denied summary judgment on the nonappearance defense.