June 15, 2016
Metro 8 Med. Equip., Inc. v Esurance Ins. Co. (2016 NY Slip Op 50904(U))
https://www.beynensonlaw.com/case-law/metro-8-med-equip-inc-v-esurance-ins-co-2016-ny-slip-op50904u/
- Decided
- June 15, 2016
- Citation
- 2016 NY Slip Op 50904(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof · Proof of mailing (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 Metro 8 Med. Equip., Inc. v Esurance Ins. Co. (2016 NY Slip Op 50904(U))
against
Esurance Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered April 23, 2014, which granted defendant’s motion for summary judgment dismissing the complaint.
Per Curiam.
Order (James E. d’Auguste, J.), entered April 23, 2014, affirmed, with $10 costs.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath [EUOs] to plaintiff’s assignor and his attorney, and that the assignor failed to appear at the initial EUO and the June 20, 2011 rescheduled follow-up EUO (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the affirmation of defendant’s attorney who was assigned to the file and the affidavit of defendant’s employee who was responsible for the scheduling of the EUOs, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the EUOs and the office practices and policies when an assignor fails to appear for a scheduled IME (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d at 411; American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]).
In opposition to defendant’s prima facie showing, plaintiff did not specifically deny the assignor’s nonappearance at the scheduled EUOs, or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705[2011]).
Plaintiff’s remaining contentions are either without merit or, where plaintiff failed to articulate any specific arguments in its appellate brief, abandoned on appeal (see Mendoza v Akerman Senterfitt LLP, 128 AD3d 480, 483 [2015]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 15, 2016
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 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 mailing and nonappearance at the initial and follow-up EUOs through the assigned attorney's affirmation and the scheduler's affidavit showing personal knowledge; the provider raised no triable issue.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 93 (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 established timely and proper mailing of the EUO notices to the assignor and his attorney, and the provider raised no triable issue on mailing.
Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921) FollowedFailure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.
- Hertz Corp. v Active Care Med. Supply Corp. (2015 NY Slip Op 00212) FollowedA provider's failure to attend EUOs violates a condition precedent to no-fault coverage and vitiates the policy.
- American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273) FollowedFailure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Similar decisions
- MDJ Med. PC v Delos Ins. Co. (2016 NY Slip Op 50604(U))The insurer established timely EUO requests, proper mailing and the assignor's nonappearance at two scheduled EUOs. Its EUO letters demonstrated compliance with the request periods in 11 NYCRR 65-3.5 (b) and 65-3.6 (b).
- Metro Psychological Servs., P.C. v Mercury Cas. Co. (2015 NY Slip Op 51644(U))An EUO request issued after an assignor misses a rescheduled EUO constitutes a follow-up request under 11 NYCRR 65-3.6 (b).
- Village Med. Supply, Inc. v Hereford Ins. Co. (2018 NY Slip Op 51014(U))The insurer established the assignor's EUO nonappearances through an employee affidavit demonstrating personal knowledge.
- SMB Med., P.C. v State Farm Mut. Ins. Co. (2014 NY Slip Op 51853(U))The insurer proved the assignor's IME nonappearance through evidence of office practices and timely mailing of the notices.
- Metro 8 Med. Equip., Inc. v ELRAC, Inc. (2016 NY Slip Op 50174(U))The insurer failed to submit competent proof that the assignor missed scheduled IMEs. The Appellate Term, First Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion.