April 2, 2007
Mega Supply & Billing, Inc. v AIU Ins. Co. (2007 NY Slip Op 50687(U))
https://www.beynensonlaw.com/case-law/mega-supply-billing-inc-v-aiu-ins-co-2007-ny-slip-op-50687u/
- Decided
- April 2, 2007
- Citation
- 2007 NY Slip Op 50687(U) · 15 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- Proof of mailing · No-show defense: insurer's proof (see the maps)
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 Supply & Billing, Inc. v AIU Ins. Co. (2007 NY Slip Op 50687(U))
| Mega Supply & Billing, Inc. v AIU Ins. Co. |
| 2007 NY Slip Op 50687(U) [15 Misc 3d 132(A)] |
| Decided on April 2, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-541 K C.
against
AIU Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered January 17, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.
Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
In an action to recover first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim, setting forth the fact and the amount of the loss sustained, and that payment
of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.
In opposition to plaintiff’s motion, defendant’s attorney stated that defendant’s denial was based upon plaintiff’s assignor’s nonattendance at an examination under oath (EUO). As plaintiff [*2]correctly asserted, defendant was required to establish by proof in admissible form that the EUO scheduling letters were mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant submitted an affidavit from an administrative assistant who stated that the first request was forwarded to plaintiff’s assignor and that she forwarded a second request to plaintiff’s assignor. Her affidavit was insufficient because she did not state that she actually mailed the letters and since she did not set forth proof of defendant’s office practice or procedure designed to ensure that items are properly addressed and mailed, it did not give rise to a presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Accordingly, because defendant did not
establish that the EUO scheduling letters were mailed, defendant failed to raise a triable issue of fact.
In view of the foregoing, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 02, 2007
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the administrative assistant's affidavit that requests were 'forwarded' insufficient because she neither stated she mailed the EUO letters nor described an office practice ensuring proper addressing and mailing.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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 failed to prove the scheduling letters were mailed or properly addressed
Held the insurer failed to raise a triable issue on its EUO no-show defense because its affidavit did not establish mailing of the scheduling letters, so the provider's motion was granted.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- 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.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
Cited by
- All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (2007 NY Slip Op 27458)The insurer failed to prove timely mailing of verification requests or lack of medical necessity for the prescribed equipment.
Similar decisions
- Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51269(U))The insurer proved timely mailing of EUO notices and denials, and the provider's challenge to nonappearance proof was improperly raised.
- 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.
- Mega Supply & Billing, Inc. v Allstate Indemnity Co. (2007 NY Slip Op 51515(U))The provider's summary judgment award was reversed because its employee's affidavit did not establish admissibility of the claim forms.
- Mega Supply & Billing, Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52504(U))Neither party established summary judgment entitlement because the provider failed to prove claim mailing and the insurer failed to prove timely denial.
- Mega Supply & Billing Inc. v Auto One Ins. Co. (2006 NY Slip Op 52304(U))The provider's corporate officer failed to establish personal knowledge sufficient to authenticate the motion exhibits as business records.