May 14, 2021

Madison Prods. of USA, Inc. v 21st Century Ins. Co. (2021 NY Slip Op 50446(U))

https://www.beynensonlaw.com/case-law/madison-prods-of-usa-inc-v-21st-century-ins-co-2021-ny-slip-op50446u/

Court: Appellate Term, Second Department
Decided: May 14, 2021
Citation: 2021 NY Slip Op 50446(U) · 71 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Madison Prods. of USA, Inc. v 21st Century Ins. Co., 71 Misc 3d 138(A), 2021 NY Slip Op 50446(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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 summary judgment dismissing the provider's claims was affirmed based on timely mailing of EUO scheduling letters. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion. Rejecting the provider's sole contention concerning the insurer's motion, the court stated that timely mailing was established, citing 11 NYCRR 65-3.5 (a) and (d) and Appendix 13.

Reported in New York Official Reports at Madison Prods. of USA, Inc. v 21st Century Ins. Co. (2021 NY Slip Op 50446(U))

[*1]

Madison Prods. of USA, Inc. v 21st Century Ins. Co.

2021 NY Slip Op 50446(U) [71 Misc 3d 138(A)]

Decided on May 14, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-675 K C

Madison Products of USA, Inc., as Assignee of Barnes, Omari, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered March 12, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion, defendant established that the examination under oath scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 11 NYCRR 65-3.5 [a], [d]; Appendix 13).

Accordingly, the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021

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.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the insurer established that the EUO scheduling letters were timely mailed, rejecting the provider's sole contention on appeal.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer established timely mailing of the EUO scheduling letters, the only challenged element, so summary judgment dismissing the complaint on the no-show was affirmed.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
City Anesthesia Healthcare, P.C. v Erie Ins. Co. of N.Y. (2021 NY Slip Op 50135(U)) FollowedA pre-claim IME scheduling letter need not be mailed within 30 days after the insurer receives the NF-2.

Cited by

JFL Med. Care, P.C. v Lancer Ins. Co. (2022 NY Slip Op 50056(U))The insurer's summary judgment motion was granted based on established mailing of IME scheduling letters to the assignor.

Similar decisions

Maiga Prods. Corp. v 21st Century Ins. Co. (2018 NY Slip Op 50845(U))The insurer's proof raised a presumption that the EUO scheduling letters and denial forms were properly mailed.
Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51646(U))The insurer established timely EUO notices and denials and the provider's two nonappearances, with no triable issue raised in opposition.
Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))The insurer's proof established timely mailing of EUO notices and denials and the assignor's failure to appear for the scheduled EUOs. The insurer moved for summary judgment dismissing the provider's assigned no-fault claims.
Excel Prods., Inc. v Farmington Cas. Co. (2021 NY Slip Op 50441(U))The insurer's initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims.
TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51510(U))The insurer established EUO nonappearance and timely mailing of its denial forms, supporting dismissal of the provider's claims.