December 19, 2017
Masigla v Travelers Ins. Co. (2017 NY Slip Op 51794(U))
https://www.beynensonlaw.com/case-law/masigla-v-travelers-ins-co-2017-ny-slip-op-51794u/
- Decided
- December 19, 2017
- Citation
- 2017 NY Slip Op 51794(U) · 58 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Masigla v Travelers Ins. Co. (2017 NY Slip Op 51794(U))
| Masigla v Travelers Ins. Co. |
| 2017 NY Slip Op 51794(U) [58 Misc 3d 134(A)] |
| Decided on December 19, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th
JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M.
SOLOMON, JJ
2015-289 Q C
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (William Angstreich, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 5, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through sixth, eighth, and tenth causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
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. Plaintiff appeals, as limited by its brief, from so much of a January 5, 2015 order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through sixth, eighth, and tenth causes of action on the ground that plaintiff had failed to appear for examinations under oath (EUOs).
Contrary to plaintiff’s contention, the affirmations submitted by defendant’s attorneys, who were present in their offices to conduct plaintiff’s EUOs on the scheduled dates, were sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017
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 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 affirmations of the insurer's attorneys, who were present in their offices on the scheduled dates, sufficient to establish the provider's nonappearance at the EUOs, rejecting the provider's challenge.
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.
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)
Sustained the EUO no-show dismissal after finding the insurer's proof sufficient to presume its denial of claim forms were properly mailed, treating a proper denial as part of the defense.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the insurer's proof sufficient to give rise to a presumption that its denial of claim forms had been properly mailed.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- 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.
Similar decisions
- Masigla v ELRAC, Inc. (2017 NY Slip Op 51868(U))The defendant's summary judgment dismissal of the third, fifth and seventh causes of action was upheld on a presumption of timely denial mailing.
- Masigla v 21st Century Ins. Co. (2019 NY Slip Op 50938(U))The insurer failed to establish through admissible evidence that Florida law applied or that the policy limits were exhausted.
- Masigla v National Liab. & Fire Ins. Co. (2017 NY Slip Op 51847(U))The insurer failed to establish proper mailing of IME scheduling letters and was denied summary judgment on its IME nonappearance defense.
- Masigla v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51239(U))An insurer may deny later-submitted claims for prior provider EUO nonappearances without scheduling additional EUOs after submission.
- Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U))The insurer's proof raised a presumption of proper mailing of the denials supporting its late-accident-notice defense.