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May 24, 2011

LDE Med. Servs., P.C. v Encompass Ins. (2011 NY Slip Op 50979(U))

https://www.beynensonlaw.com/case-law/lde-med-servs-p-c-v-encompass-ins-2011-ny-slip-op-50979u/

Court
Appellate Term, Second Department
Decided
May 24, 2011
Citation
2011 NY Slip Op 50979(U) · 31 Misc 3d 148(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
EUO no-show Provider's prima facie case
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
LDE Med. Servs., P.C. v Encompass Ins., 31 Misc 3d 148(A), 2011 NY Slip Op 50979(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 provider's summary judgment award was reversed on the assignor's EUO nonappearance defense. The Appellate Term, Second Department, vacated the order and denied the motion for the reasons stated in the earlier LDE Med. Servs., P.C. v Encompass Ins., involving the same pertinent facts. The billing affidavit established document admissibility under CPLR 4518; no other issue was reached.

Reported in New York Official Reports at LDE Med. Servs., P.C. v Encompass Ins. (2011 NY Slip Op 50979(U))

[*1]
LDE Med. Servs., P.C. v Encompass Ins.
2011 NY Slip Op 50979(U) [31 Misc 3d 148(A)]
Decided on May 24, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-1920 Q C.
LDE Medical Services, P.C. as Assignee of RAESHIA McQUEEN, Respondent,

against

Encompass Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 17, 2009, deemed from a judgment of the same court entered August 6, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 17, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $370.34.

ORDERED that the judgment is reversed, without costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment. A
judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing administrator was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). However, as the pertinent facts concerning the failure of plaintiff’s assignor to appear for an examination under oath are the same as those in LDE Med. Servs., P.C. v Encompass Ins. (29 Misc 3d 130[A], 2010 NY Slip Op 51845[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), for the reasons stated in that case, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied. We reach no other issue. [*2]

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 24, 2011

Legal questions

A question 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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Rejected the insurer's challenge and held the billing administrator's affidavit sufficient to make the annexed claim documents admissible under CPLR 4518, though summary judgment was vacated on the EUO no-show defense.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (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.
  • Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
  • Lde Med. Servs., P.C. v Encompass Ins. (2010 NY Slip Op 51845(U)) FollowedThe insurer established the assignor's failure to appear for duly scheduled EUOs, defeating the provider's summary judgment motion.

Similar decisions

  • Jamaica Med. Supply, Inc. v Encompass Indem. Co. (2012 NY Slip Op 51825(U))The insurer established timely mailing of EUO scheduling letters and denials, and the assignors' failure to attend the scheduled EUOs. Its affidavits defeated the provider's challenges to mailing and nonappearance.
  • Compas Med., P.C. v Elrac, Inc. (2013 NY Slip Op 51734(U))The insurer established nonreceipt of two bills and the assignor's failure to appear for duly scheduled IMEs. Its affidavit sufficiently demonstrated that it had not received the two claim forms, rather than merely denying receipt in conclusory terms.
  • Leica Supply, Inc. v Encompass Indem. Co. (2012 NY Slip Op 50890(U))The insurer proved timely mailing of EUO notices and the denial, and the assignor's failure to appear at either scheduled EUO. The provider challenged summary judgment dismissing its assigned no-fault claims.
  • RLC Med., P.C. v Allstate Ins. Co. (2009 NY Slip Op 51131(U))The provider's billing manager failed to establish admissible business records, defeating the provider's motion for summary judgment.
  • LDE Med. Servs., P.C. v Interboro Ins. Co. (2011 NY Slip Op 50946(U))The insurer failed to submit admissible proof of IME nonappearance with its cross motion, and proof first offered in reply was improper.
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