August 16, 2019

Lida’s Med. Supply, Inc. v Hereford Ins. Co. (2019 NY Slip Op 51356(U))

https://www.beynensonlaw.com/case-law/lidas-med-supply-inc-v-hereford-ins-co-2019-ny-slip-op-51356u/

Court: Appellate Term, Second Department
Decided: August 16, 2019
Citation: 2019 NY Slip Op 51356(U)
Posture: Summary judgment
Outcome: Split result
Issues: Provider's prima facie case Timeliness and preclusion IME no-show
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

Lida's Med. Supply, Inc. v Hereford Ins. Co., 2019 NY Slip Op 51356(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 failed to establish entitlement to payment, and the insurer failed to establish timely mailing of its follow-up IME letter. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its summary judgment motion, and denied that motion, while leaving the insurer's cross motion denied. The provider's proof established neither that the claims were untimely denied nor that timely denials were conclusory, vague, or without merit as a matter of law. The insurer failed to establish timeliness of its follow-up IME scheduling letter under 11 NYCRR 65-3.6 (b). Its argument concerning 11 NYCRR 65-3.5 (p) was first raised on appeal and was not considered.

Reported in New York Official Reports at Lida’s Med. Supply, Inc. v Hereford Ins. Co. (2019 NY Slip Op 51356(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Lida’s Medical Supply, Inc., as Assignee of Gabriel Pierre, Respondent,
against
Hereford Insurance Co., Appellant.

Goldberg Miller & Rubin (Joshua C. Shack of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered May 11, 2017, deemed from a judgment of that court entered September 1, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 11, 2017 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,595.38.

ORDERED that the judgment is reversed, without costs, so much of the May 11, 2017 order as granted 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). By order entered May 11, 2017, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. A judgment awarding plaintiff the principal sum of $1,595.38 was entered on September 1, 2017. Defendant’s appeal from the May 11, 2017 order is deemed to be from the judgment entered pursuant thereto (see CPLR 5501 [c]).

Defendant correctly argues that plaintiff’s motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish, as a matter of law, that the claims 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 timely denial of claim forms that were 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], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, [*2]since defendant failed to establish that its follow-up IME scheduling letter was timely (see 11 NYCRR 65-3.6 [b]), its cross motion for summary judgment dismissing the complaint was properly denied. Defendant’s contention regarding the applicability of 11 NYCRR 65-3.5 (p) is improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it.

Accordingly, the judgment is reversed, so much of the May 11, 2017 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 16, 2019

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.

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: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to establish as a matter of law that the claims had not been timely denied or that timely denials were conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements

Held the insurer's IME no-show cross motion properly denied because it failed to establish that its follow-up IME scheduling letter was timely under the follow-up rule.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decision

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 101 (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)The 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))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Lida’s Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51691(U))The provider's summary judgment motion was denied because it failed to establish untimely denial or a legally insufficient timely denial.
Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51733(U))The provider's summary judgment motion was denied on appeal for failure to establish the required proof concerning claim denial.
Success Rehab, PT, P.C. v Hereford Ins. Co. (2019 NY Slip Op 52031(U))The insurer's IME no-show defense failed on nine claims because the first IME was scheduled beyond 30 days after receipt.
Queens Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. (2015 NY Slip Op 51272(U))The provider established entitlement to payment where the insurer neither paid nor denied within 30 days and failed to prove tolling.
Total Chiropractic, P.C. v Hereford Ins. Co. (2020 NY Slip Op 51362(U))The provider failed to establish its prima facie case, and the insurer failed to schedule the initial IME within the required 30 days.