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January 20, 2017

Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 50113(U))

https://www.beynensonlaw.com/case-law/maiga-prods-corp-v-unitrin-auto-home-ins-co-2017-ny-slip-op50113u/

Court
Appellate Term, Second Department
Decided
January 20, 2017
Citation
2017 NY Slip Op 50113(U)
Posture
Summary judgment
Outcome
Split result
Issues
Provider's prima facie case EUO no-show
Legal questions
Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)
Cite as
Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co., 2017 NY Slip Op 50113(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 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). The insurer's submissions showed several EUOs rescheduled at the assignor's attorney's request and one unrescheduled nonappearance, but did not establish two missed, duly scheduled EUOs. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its summary judgment motion and denied that motion, while sustaining denial of the insurer's cross motion to dismiss. It passed on no other issue.

Reported in New York Official Reports at Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 50113(U))

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

Maiga Products Corp., as Assignee of SHELLA VERNE, Respondent,

against

Unitrin Auto and Home Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered August 22, 2014. The judgment entered pursuant to an order of the same court dated July 2, 2014 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 $549.18.

ORDERED that the judgment is reversed, without costs, so much of the order dated July 2, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion 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, among others, that the assignor’s failure to appear for examinations under oath (EUOs) violated a condition precedent to coverage, which provided defendant with a basis for its founded belief that the underlying accident was not a covered event. In the alternative, defendant’s cross motion sought a stay of the action pending the determination of a Supreme Court declaratory judgment action involving the same accident, medical provider and assignor. By order dated July 2, 2014, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant had failed to demonstrate that the assignor had failed to appear at two scheduled EUOs. A judgment was subsequently entered in plaintiff’s favor on August 22, 2014, from which defendant appeals.

Upon a review of the record, we find that plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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]). Consequently, plaintiff failed to establish its prima facie case.

In papers submitted in support of defendant’s cross motion, it was alleged that defendant had requested that the assignor appear for scheduled EUOs and that, although several EUOs had been rescheduled at the request of the assignor’s attorney, the assignor had ultimately failed to appear at the EUO scheduled on August 28, 2012, which EUO had not been rescheduled. [*2]Defendant’s papers further stated that defendant had subsequently mailed a denial of claim form to plaintiff which denied plaintiff’s claim on the ground that its assignor had failed to appear at EUOs. Inasmuch as defendant’s papers did not establish that plaintiff’s assignor had failed to appear for two duly scheduled EUOs, the Civil Court correctly found that defendant had failed to establish its entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 129[A], 2016 NY Slip Op 50928[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

We pass on no other issue.

Accordingly, the judgment is reversed, so much of the order dated July 2, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

Solomon, J.P., Weston and Elliot, JJ., concur.


Decision Date: January 20, 2017

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 that the claim was not denied within 30 days or that a timely denial was conclusory, vague or without merit.

  • 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, 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 failed to show nonappearance at two duly scheduled EUOs because earlier EUOs were rescheduled at the assignor's attorney's request and only the last one was missed.

  • Appellate DivisionApp Div 10
  • Appellate TermApp Term 759
  • Trial courtsTrial 89
2023, Appellate Division: 1 decision (1 Defense proved)2022, Appellate Division: 1 decision (1 Requests not compliant)2020, Appellate Division: 1 decision (1 Defense proved)2016, Appellate Division: 2 decisions (2 Mailing not proved)2015, Appellate Division: 1 decision (1 Mailing not proved)2014, Appellate Division: 2 decisions (2 Defense proved)2006, Appellate Division: 1 decision (1 Mailing not proved)2004, Appellate Division: 1 decision (1 No-show excused)2023, Appellate Term: 5 decisions (5 Defense proved)2022, Appellate Term: 45 decisions (37 Defense proved, 3 Mailing not proved, 3 Nonappearance not proved, 2 Requests not compliant)2021, Appellate Term: 22 decisions (16 Defense proved, 3 Mailing not proved, 1 Requests not compliant, 2 Triable issue)2020, Appellate Term: 30 decisions (26 Defense proved, 2 Mailing not proved, 2 Requests not compliant)2019, Appellate Term: 69 decisions (53 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 13 Requests not compliant, 1 Triable issue)2018, Appellate Term: 52 decisions (43 Defense proved, 3 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant)2017, Appellate Term: 88 decisions (52 Defense proved, 16 Mailing not proved, 6 Nonappearance not proved, 11 Requests not compliant, 1 Triable issue, 2 No-show excused)2016, Appellate Term: 75 decisions (34 Defense proved, 15 Mailing not proved, 22 Nonappearance not proved, 3 Requests not compliant, 1 Triable issue)2015, Appellate Term: 77 decisions (48 Defense proved, 6 Mailing not proved, 14 Nonappearance not proved, 5 Requests not compliant, 4 Triable issue)2014, Appellate Term: 46 decisions (35 Defense proved, 5 Mailing not proved, 4 Nonappearance not proved, 2 Requests not compliant)2013, Appellate Term: 44 decisions (29 Defense proved, 6 Mailing not proved, 7 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Appellate Term: 51 decisions (37 Defense proved, 5 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant, 2 Triable issue, 1 No-show excused)2011, Appellate Term: 33 decisions (27 Defense proved, 3 Mailing not proved, 2 Nonappearance not proved, 1 Triable issue)2010, Appellate Term: 14 decisions (9 Defense proved, 1 Mailing not proved, 2 Nonappearance not proved, 2 Requests not compliant)2009, Appellate Term: 15 decisions (6 Defense proved, 6 Mailing not proved, 2 Nonappearance not proved, 1 Requests not compliant)2008, Appellate Term: 7 decisions (2 Defense proved, 1 Mailing not proved, 4 Nonappearance not proved)2007, Appellate Term: 15 decisions (1 Defense proved, 6 Mailing not proved, 5 Nonappearance not proved, 3 Triable issue)2006, Appellate Term: 20 decisions (1 Defense proved, 9 Mailing not proved, 6 Requests not compliant, 4 Triable issue)2005, Appellate Term: 19 decisions (3 Defense proved, 10 Mailing not proved, 5 Requests not compliant, 1 No-show excused)2004, Appellate Term: 15 decisions (3 Defense proved, 1 Mailing not proved, 10 Requests not compliant, 1 Triable issue)2024, Appellate Term: 6 decisions (6 Defense proved)2025, Appellate Term: 7 decisions (7 Defense proved)2026, Appellate Term: 3 decisions (3 Defense proved)2003, Appellate Term: 1 decision (1 Requests not compliant)2023, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 2 Triable issue)2022, Trial courts: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2021, Trial courts: 10 decisions (8 Defense proved, 2 Requests not compliant)2020, Trial courts: 3 decisions (2 Mailing not proved, 1 Requests not compliant)2019, Trial courts: 5 decisions (3 Mailing not proved, 2 Requests not compliant)2018, Trial courts: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2017, Trial courts: 6 decisions (2 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 Triable issue)2016, Trial courts: 4 decisions (3 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 1 Triable issue, 1 No-show excused)2013, Trial courts: 7 decisions (3 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 No-show excused)2012, Trial courts: 5 decisions (2 Defense proved, 3 Requests not compliant)2010, Trial courts: 3 decisions (2 Defense proved, 1 Requests not compliant)2009, Trial courts: 2 decisions (2 Defense proved)2008, Trial courts: 4 decisions (2 Defense proved, 2 Requests not compliant)2007, Trial courts: 1 decision (1 Mailing not proved)2006, Trial courts: 2 decisions (2 Mailing not proved)2005, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2004, Trial courts: 7 decisions (1 Defense proved, 2 Mailing not proved, 4 Requests not compliant)2024, Trial courts: 2 decisions (1 Mailing not proved, 1 Requests not compliant)2025, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2026, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2011, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Cited in this decision

  • 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.
  • Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092)The assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
  • Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50928(U))The insurer proved timely mailing and the provider's EUO nonappearances, while the provider failed to justify further discovery.

Similar decisions

  • Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50736(U))An insurer seeking judgment for EUO nonappearance must prove two duly demanded EUOs, two nonappearances and timely denials.
  • 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 Hertz Co. (2018 NY Slip Op 51448(U))The self-insurer obtained dismissal based on a later declaratory judgment despite failing to establish timely, proper EUO denials below.
  • Great Health Care Chiropractic, P.C. v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50782(U))The insurer failed to prove timely mailing of EUO scheduling letters, defeating summary judgment based on the assignor's alleged nonappearance.
  • Maiga Prods. Corp. v MVAIC (2020 NY Slip Op 50993(U))The provider failed at trial to establish that its assignor was not the owner of the uninsured vehicle, defeating eligibility for MVAIC benefits.
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