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/
- Decided
- May 24, 2011
- Citation
- 2011 NY Slip Op 50979(U) · 31 Misc 3d 148(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Claimant's prima facie case on motions (see the maps)
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 LDE Med. Servs., P.C. v Encompass Ins. (2011 NY Slip Op 50979(U))
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
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.
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.
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.
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.