December 17, 2014
MML Med. Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51792(U))
https://www.beynensonlaw.com/case-law/mml-med-care-p-c-v-praetorian-ins-co-2014-ny-slip-op51792u/
- Court
- Appellate Term, Second Department
- Decided
- December 17, 2014
- Citation
- 2014 NY Slip Op 51792(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 3 later decisions (see Cited by)
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 MML Med. Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51792(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Praetorian Insurance Company, Appellant.
Appeal from orders of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered October 20, 2011 and October 31, 2011, respectively. The order entered October 20, 2011 denied defendant’s motion for summary judgment dismissing the complaint. The order entered October 31, 2011 granted plaintiff’s cross motion for summary judgment.
ORDERED that the orders are reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered October 20, 2011 which denied defendant’s motion for summary judgment dismissing the complaint and from an order of the same court entered October 31, 2011 which granted plaintiff’s cross motion for summary judgment.
Defendant established that it had 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]) letters and follow-up letters scheduling examinations under oath (EUOs) by both first class and certified mail, return receipt requested. Defendant further demonstrated that it had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) the denial of claim forms, which denied the claims on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs. In support of its motion, defendant also submitted certified transcripts of the scheduled EUOs, which demonstrated that plaintiff’s assignor had failed to appear. Plaintiff does not claim to have responded in any way to the EUO requests. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff failed to raise a triable issue of fact in opposition.
While the Civil Court held that the tracking numbers associated with the copies of the letters which had been sent by certified mail, return receipt requested, reflected that these copies of the EUO scheduling letters had apparently not been delivered to the assignor, such a fact, even if true, would not excuse the failure of plaintiff’s assignor to appear for the duly scheduled EUOs since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff’s assignor by first class mail had been insufficient.
Accordingly, the orders are reversed, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
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.
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 proved timely mailing of the EUO letters and denials; certified-mail tracking showing nondelivery did not defeat the presumption since nothing showed the first-class mailing was insufficient.
Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (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 initial and follow-up EUO letters and nonappearance by certified transcripts; undelivered certified copies did not excuse nonappearance absent evidence that first-class mailing was insufficient.
Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 518 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the insurer established that it timely mailed denial of claim forms denying the claims on the EUO no-show ground, as part of its prima facie showing.
Of the 457 decisions on this question in the Second Department courts and the Court of Appeals, 308 (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)The 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)An 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.
Cited by
A label shows how the later decision treated this one.
- JCC Med., P.C. v Lancer Ins. Co. (2021 NY Slip Op 50485(U)) FollowedProof of timely first-class mailing of EUO scheduling letters makes proof that copies were also sent by certified mail unnecessary.
- Meridian Psychological Servs., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50375(U)) FollowedThe insurer failed to prove nonappearance at two EUOs because its witness did not account for the time specified for the second EUO. Following a nonjury trial, the provider recovered assigned no-fault benefits.
- Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. (2019 NY Slip Op 51148(U)) FollowedThe insurer's first-class EUO notices sufficed despite the disputed proof of certified mailing of the follow-up notice.
- Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc. (2017 NY Slip Op 50923(U))The defendant's timely mailing of the initial EUO notice tolled its time to pay or deny claims received afterward.
- Charles Deng Acupuncture, P.C. v Titan Ins. Co. (2016 NY Slip Op 26211)Certified EUO no-show transcripts were admissible as business records at trial and established the provider's nonappearances.
- Quest Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2020 NY Slip Op 51003(U))The insurer established mailing of pre-claim IME notices, the assignor's nonappearance, and a timely denial based on that nonappearance.
Similar decisions
- MDJ Med., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50895(U))The insurer proved timely mailing of IME and EUO notices and the assignor's repeated nonappearances.
- Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51679(U))The insurer proved IME nonappearance on six claims and rebutted the presumption of receipt of a seventh claim.
- Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50685(U))An insurer need not set forth objective standards for requesting an EUO under No-Fault Regulation 68.
- Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51671(U))The insurer proved timely mailing of EUO notices and denials and the assignor's nonappearance, supporting dismissal of the disputed claims.
- Neptune Med. Care, P.C. v Praetorian Ins. Co. (2019 NY Slip Op 51052(U))The insurer failed to establish timely mailing of the initial and follow-up EUO and IME scheduling letters.