December 16, 2011
Metrostar, Inc. v Electric Ins. Co. (2011 NY Slip Op 52277(U))
https://www.beynensonlaw.com/case-law/metrostar-inc-v-electric-ins-co-2011-ny-slip-op-52277u/
- Decided
- December 16, 2011
- Citation
- 2011 NY Slip Op 52277(U) · 34 Misc 3d 126(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 Metrostar, Inc. v Electric Ins. Co. (2011 NY Slip Op 52277(U))
| Metrostar, Inc. v Electric Ins. Co. |
| 2011 NY Slip Op 52277(U) [34 Misc 3d 126(A)] |
| Decided on December 16, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-930 K C.
against
Electric Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kenneth P. Sherman, J.), entered November 24, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment.
Although defendant denied the claims on the ground that plaintiff’s assignor had failed to attend scheduled independent medical examinations (IMEs), the affidavits submitted by defendant were insufficient to establish the proper mailing of the IME scheduling letters (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]). As a result, defendant was not entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is affirmed.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011
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 insurer's affidavits insufficient to establish proper mailing of the IME scheduling letters.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (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 IME no-show defense unproved because the insurer's affidavits did not establish proper mailing of the scheduling letters.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (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.
Similar decisions
- Metro Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51517(U))The insurer's proof established proper mailing of EUO scheduling letters and the assignor's failure to attend the EUOs. In the provider's action for assigned first-party no-fault benefits, the Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
- Metro Psychological Servs., P.C. v ELRAC, Inc. (2018 NY Slip Op 51760(U))The self-insurer's summary judgment dismissal for the assignor's IME nonappearance was affirmed on mailing and nonappearance proof.
- Metro Pain Specialist, P.C. v ELRAC, Inc. (2020 NY Slip Op 51341(U))The defendant failed to prove proper mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
- Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U))An insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue.
- Barclays Med., P.C. v NY Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51758(U))The insurer established timely IME requests and denials and the assignor's failure to attend the scheduled examinations.