May 18, 2018
Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50736(U))
https://www.beynensonlaw.com/case-law/maiga-prods-corp-v-state-farm-mut-auto-ins-co-2018-ny-slip-op50736u/
- Decided
- May 18, 2018
- Citation
- 2018 NY Slip Op 50736(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 3 later decisions (see Cited by)
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 Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50736(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 27, 2015. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered March 27, 2015, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and “[defendant’s] procedure for receipt of the bills in Georgia and processing and transmittal to and in [defendant’s] Ballston Spa [office].” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.
To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had [*2]twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff challenges the Civil Court’s implicit CPLR 3212 (g) findings in favor of defendant. However, a review of the record establishes that the Civil Court correctly determined that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. As a result, the Civil Court should have granted defendant’s motion for summary judgment. We note that defendant’s transmittal of the claims from one of its offices to another of its offices does not raise a triable issue of fact.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 18, 2018
Legal questions (3)
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.
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
Upheld the finding that the insurer established timely and proper mailing of the EUO scheduling letters and denial forms, and held its interoffice transmittal of the claims raised no triable issue.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.
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 mailed EUO scheduling letters and the provider's failure to appear, so summary judgment dismissing the complaint should have been granted.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Applied the rule that the insurer must show two EUO demands, two nonappearances and a timely denial, and upheld the finding that the denial forms were timely and properly mailed.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- Integrative Pain Medicine, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51520(U)) FollowedThe insurer failed to establish a mailing practice sufficient to presume that its EUO scheduling letters were properly mailed.
Cited by
A label shows how the later decision treated this one.
- Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51552(U)) FollowedThe insurer's transfer of claims between its offices did not raise a triable issue defeating summary judgment for EUO nonappearance.
- Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51681(U)) FollowedThe insurer's mail-receipt practices were irrelevant to the provider's challenge to timely mailing of the first EUO scheduling letter.
- Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51763(U)) FollowedThe insurer's mail-receipt practices were irrelevant to the provider's challenge to timely mailing of the first EUO scheduling letter.
- Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 51041(U))The insurer's transfer of claims between offices and the location generating timely EUO letters did not raise a triable issue.
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.
- Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51045(U))An EUO letter's different contact at the same law firm does not undermine an otherwise sufficient affirmation of nonappearance.
- GLM Med., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 50194(U))EUO scheduling letters need not highlight the time and place in bold or larger type.
- Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 50113(U))The provider failed to establish its prima facie case, and the insurer failed to prove two missed EUOs. The provider did not show that the insurer failed to deny within 30 days or issued a timely denial that was conclusory, vague or meritless under Insurance Law § 5106 (a).
- New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51158(U))A party invoking CPLR 3212 (f) must show unavoidable ignorance of critical facts and reasonable attempts to obtain them.