September 15, 2015
National Liab. & Fire Ins. Co. v Tam Med. Supply Corp. (2015 NY Slip Op 06763)
https://www.beynensonlaw.com/case-law/national-liab-fire-ins-co-v-tam-med-supply-corp-2015-ny-slipop-06763/
- Decided
- September 15, 2015
- Citation
- 2015 NY Slip Op 06763 · 131 AD3d 851
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Contrasted (cf., but see) in 1 and followed in 4 later decisions (see Cited by)
- Legal questions
- 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 National Liab. & Fire Ins. Co. v Tam Med. Supply Corp. (2015 NY Slip Op 06763)
| National Liab. & Fire Ins. Co. v Tam Med. Supply Corp. |
| 2015 NY Slip Op 06763 [131 AD3d 851] |
| September 15, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| National Liability & Fire Insurance Company,
Appellant, v Tam Medical Supply Corp. et al., Respondents, et al., Defendants. |
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.
The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondents.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 20, 2014, which, to the extent appealed from, denied plaintiff’s motion for summary judgment against Tam Medical Supply Corp., Charles Deng Acupuncture, P.C., Action Potential Chiropractic, PLLC, Maiga Products Corporation, Pierre J. Renelique, MD, Maria Masiglia PT, and Gentlecare Ambulatory Anesthesia Services (the answering defendants), unanimously affirmed, with costs.
Plaintiff no-fault insurer moved for summary judgment declaring that its policy does not provide coverage to the individual defendant for the subject accident based on her failure to appear for scheduled examinations under oath (EUO). Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiff’s summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR 65-3.5 [b]). In its reply, plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. Accordingly, plaintiff’s motion for summary judgment was properly denied. Concur—Tom, J.P., Friedman, Sweeny, Saxe and Clark, JJ.
Legal questions
A question 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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held summary judgment properly denied because the insurer offered no evidence that it requested the EUO within the 65-3.5 (b) time frame after the assignees raised the point.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
- Hertz Corp. v Active Care Med. Supply Corp. (2015 NY Slip Op 00212)A provider's failure to attend EUOs violates a condition precedent to no-fault coverage and vitiates the policy.
- Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921)Failure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.
Cited by
A label shows how the later decision treated this one.
- MDJ Med. PC v Delos Ins. Co. (2016 NY Slip Op 50604(U)) Contrasted (cf., but see)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).
- Hertz Vehicles, LLC v Best Touch PT, P.C. (2018 NY Slip Op 04854) FollowedThe insurer failed to prove timely EUO requests for default relief against providers but established one claimant's failure to sign an EUO. The motion omitted receipt dates for the providers' verification forms and another claimant's application, preventing assessment of the 15-business-day deadline under 11 NYCRR 65-3.5 (a) and (b).
- Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916) FollowedThe insurer failed to establish whether its EUO notices were subject to regulatory deadlines or complied with applicable deadlines.
- Unitrin Direct Ins. Co. v Beckles (2020 NY Slip Op 06974) FollowedAn insurer establishes a coverage disclaimer by requesting an IME within 15 days of a claim and proving two duly noticed IME no-shows.
- Sure Way NY, Inc. v Travelers Ins. Co. (2016 NY Slip Op 26413) FollowedAn insurer has 15 business days to request a provider's EUO when new information from the assignor's EUO warrants it.
- Mapfre Ins. Co. of N.Y. v Manoo (2016 NY Slip Op 04446)EUO requests made before receipt of a claim form are not subject to the verification notice requirements of 11 NYCRR 65-3.5 and 65-3.6.
- American Tr. Ins. Co. v Longevity Med. Supply, Inc. (2015 NY Slip Op 06761)An insurer seeking summary judgment on an IME no-show must prove compliance with the 30-day period in 11 NYCRR 65-3.5 (d).
- Global Liberty Ins. Co. v Evans (2019 NY Slip Op 07716)The insurer failed to prove timely mailing of EUO letters, and factual issues remained about the assignor's departure from an EUO. The Appellate Division, First Department, affirmed denial of summary judgment declaring no coverage for the provider based on two alleged EUO failures.
- American Tr. Ins. Co. v Romero-Richiez (2020 NY Slip Op 51181(U))The insurer failed to show that its IME requests satisfied regulatory deadlines or preceded receipt of provider claims.
Similar decisions
- TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51510(U))The insurer established EUO nonappearance and timely mailing of its denial forms, supporting dismissal of the provider's claims.
- Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co. (2015 NY Slip Op 50470(U))No provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO. The lower court denied summary judgment for lack of an objective justification despite finding timely notices, reasonable scheduling and the assignor's nonappearance.
- 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.
- 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.
- New Way Med. Supply Corp. v American Tr. Ins. Co. (2015 NY Slip Op 50809(U))The insurer established timely mailing of EUO scheduling letters and denials, as well as the assignor's failure to appear for the EUOs. The provider moved for summary judgment to recover assigned no-fault benefits, and the insurer cross-moved to dismiss based on the assignor's nonappearance.