October 13, 2016
Metro Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51517(U))
https://www.beynensonlaw.com/case-law/metro-health-prods-inc-v-american-tr-ins-co-2016-ny-slip-op51517u/
- Decided
- October 13, 2016
- Citation
- 2016 NY Slip Op 51517(U) · 53 Misc 3d 140(A)
- Posture
- Summary judgment
- Outcome
- Insurer 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 Metro Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51517(U))
| Metro Health Prods., Inc. v American Tr. Ins. Co. |
| 2016 NY Slip Op 51517(U) [53 Misc 3d 140(A)] |
| Decided on October 13, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2498 K C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 17, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the examination under oath (EUO) scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 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 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 the insurer's proof, contrary to the provider's contentions, sufficient to raise a presumption that the EUO scheduling letters 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.
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 proper mailing of the EUO scheduling letters and the assignor's failure to appear, so its cross motion dismissing the complaint was properly granted.
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.
- 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
- Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51361(U))The insurer's proof established proper mailing of EUO scheduling letters and the assignor's failure to appear for the EUOs. In the provider's action for assigned no-fault benefits, the Civil Court, Queens County, denied the provider's motion for summary judgment and granted the insurer's cross motion dismissing the complaint.
- Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50402(U))The provider could not pursue objections to EUO requests it had not answered, and reasonableness discovery was unnecessary to oppose dismissal.
- 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.
- Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 50330(U))The insurer established timely mailing of EUO scheduling letters and the assignor's nonappearance, supporting dismissal of the no-fault claim.
- Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51683(U))The insurer established timely mailing of EUO scheduling letters and the provider's failure to appear for the scheduled EUOs. In the provider's action to recover assigned first-party no-fault benefits, the Civil Court, Kings County, granted the insurer's motion for summary judgment dismissing the complaint.