June 27, 2012
Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51269(U))
https://www.beynensonlaw.com/case-law/mega-supplies-billing-inc-v-state-farm-mut-auto-ins-co-2012-ny-slip-op51269u/
- Decided
- June 27, 2012
- Citation
- 2012 NY Slip Op 51269(U) · 36 Misc 3d 129(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 Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51269(U))
| Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. |
| 2012 NY Slip Op 51269(U) [36 Misc 3d 129(A)] |
| Decided on June 27, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2010-2841 K C.
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 8, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without 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.
Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its litigation examiner, and by its special investigative unit and mail room employees, which were sufficient to establish that the EUO scheduling letters and denial of claim [*2]forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), the order is affirmed.
We note that plaintiff’s remaining contention on appeal, to the effect that defendant failed to
establish plaintiff’s failure to appear at the EUOs, is not properly before this court since it is
raised for the first time in plaintiff’s reply brief on appeal. In
any event, plaintiff conceded in its papers submitted in opposition to defendant’s motion
that plaintiff’s nonattendance was “not in dispute.”
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 2012
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.
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
Held the insurer established that its denial forms, based on the EUO nonappearance, had been timely mailed, rejecting the provider's challenge.
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
Held affidavits of the litigation examiner, SIU and mail room employees sufficient to establish timely mailing of the EUO scheduling letters and denial forms, rejecting the provider's challenge.
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.
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 proved timely mailing of the EUO letters; the provider's nonappearance challenge was raised first in a reply brief and its nonattendance had been conceded as not in dispute.
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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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.
Similar decisions
- Mega Supplies Billing, Inc. v State Farm Fire & Cas. Co. (2012 NY Slip Op 51014(U))The insurer proved timely mailing of the EUO notices and denials and the provider's failure to attend either scheduled EUO. In this action for assigned first-party no-fault benefits, the provider challenged the affidavits supporting the insurer's summary judgment motion.
- Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51273(U))The insurer's affidavits established timely mailing of EUO scheduling letters and denials based on the provider's nonappearance.
- Mega Supply & Billing, Inc. v AIU Ins. Co. (2007 NY Slip Op 50687(U))The insurer failed to raise a triable issue on its EUO nonappearance defense because it did not prove mailing of the scheduling letters.
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.
- 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.