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December 17, 2014

New Way Med. Supply Corp. v MVAIC (2014 NY Slip Op 51805(U))

https://www.beynensonlaw.com/case-law/new-way-med-supply-corp-v-mvaic-2014-ny-slip-op-51805u/

Court
Appellate Term, Second Department
Decided
December 17, 2014
Citation
2014 NY Slip Op 51805(U) · 46 Misc 3d 129(A)
Posture
Summary judgment
Outcome
Provider prevailed
Later treatment
Followed in 2 later decisions (see Cited by)
Issues
EUO no-show Provider's prima facie case
Legal questions
No-show defense: insurer's proof · Claimant's prima facie case on motions (see the maps)
Cite as
New Way Med. Supply Corp. v MVAIC, 46 Misc 3d 129(A), 2014 NY Slip Op 51805(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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.

MVAIC failed to establish the assignor's nonappearance at the first scheduled EUO, entitling the provider to summary judgment. Civil Court had dismissed the assigned no-fault claims on MVAIC's EUO defense. The provider's employee affidavit established its prima facie entitlement to judgment. Although MVAIC submitted a sworn stenographic transcript showing nonappearance at the second EUO, it offered no admissible proof of nonappearance at the first. The Appellate Term, Second Department, reversed, granted the provider's motion, denied MVAIC's cross motion, and remitted for statutory interest and attorney's fees under Insurance Law § 5106 and its implementing regulations. It reached no other issue.

Reported in New York Official Reports at New Way Med. Supply Corp. v MVAIC (2014 NY Slip Op 51805(U))

[*1]
New Way Med. Supply Corp. v MVAIC
2014 NY Slip Op 51805(U) [46 Misc 3d 129(A)]
Decided on December 17, 2014
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-956 K C

New Way Medical Supply Corp. as Assignee of TEDDY RUTH, Appellant,

against

MVAIC, Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 15, 2012. 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 reversed, without costs, plaintiff’s motion for summary judgment is granted, defendant’s cross motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s


cross motion for summary judgment dismissing the complaint, finding that defendant had established its defense based upon the failure of plaintiff’s assignor to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by plaintiff’s employee was sufficient to establish plaintiff’s prima facie entitlement to summary judgment (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]). In opposition to plaintiff’s motion and in support of its cross motion for summary judgment dismissing the complaint, defendant annexed a sworn stenographic transcript to show that plaintiff’s assignor had failed to appear for the second scheduled EUO. However, defendant failed to demonstrate, by proof in admissible form, that plaintiff’s assignor had failed to appear for the first duly scheduled EUO. As a result, defendant failed to sufficiently establish its defense that plaintiff’s assignor had failed to appear for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted, defendant’s cross motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Aliotta and Solomon, JJ., concur.


Decision Date: December 17, 2014

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.

No-show defense: insurer's proof

Open the full map

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 nonappearance by someone with personal knowledge

Held the defense unproved because, although a transcript showed nonappearance at the second EUO, the insurer offered no admissible proof that the assignor failed to appear for the first scheduled EUO.

  • Appellate DivisionApp Div 8
  • Appellate TermApp Term 741
  • Trial courtsTrial 88
2023, Appellate Division: 1 decision (1 Defense proved)2020, Appellate Division: 1 decision (1 Defense proved)2016, Appellate Division: 2 decisions (2 Mailing not proved)2014, Appellate Division: 2 decisions (2 Defense proved)2006, Appellate Division: 1 decision (1 Mailing not proved)2004, Appellate Division: 1 decision (1 No-show excused)2023, Appellate Term: 4 decisions (4 Defense proved)2022, Appellate Term: 42 decisions (34 Defense proved, 3 Mailing not proved, 3 Nonappearance not proved, 2 Requests not compliant)2021, Appellate Term: 22 decisions (16 Defense proved, 3 Mailing not proved, 1 Requests not compliant, 2 Triable issue)2020, Appellate Term: 29 decisions (25 Defense proved, 2 Mailing not proved, 2 Requests not compliant)2019, Appellate Term: 67 decisions (51 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 13 Requests not compliant, 1 Triable issue)2018, Appellate Term: 52 decisions (43 Defense proved, 3 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant)2017, Appellate Term: 85 decisions (52 Defense proved, 14 Mailing not proved, 6 Nonappearance not proved, 10 Requests not compliant, 1 Triable issue, 2 No-show excused)2016, Appellate Term: 73 decisions (34 Defense proved, 13 Mailing not proved, 22 Nonappearance not proved, 3 Requests not compliant, 1 Triable issue)2015, Appellate Term: 77 decisions (48 Defense proved, 6 Mailing not proved, 14 Nonappearance not proved, 5 Requests not compliant, 4 Triable issue)2014, Appellate Term: 46 decisions (35 Defense proved, 5 Mailing not proved, 4 Nonappearance not proved, 2 Requests not compliant)2013, Appellate Term: 43 decisions (28 Defense proved, 6 Mailing not proved, 7 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Appellate Term: 51 decisions (37 Defense proved, 5 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant, 2 Triable issue, 1 No-show excused)2011, Appellate Term: 33 decisions (27 Defense proved, 3 Mailing not proved, 2 Nonappearance not proved, 1 Triable issue)2010, Appellate Term: 14 decisions (9 Defense proved, 1 Mailing not proved, 2 Nonappearance not proved, 2 Requests not compliant)2009, Appellate Term: 15 decisions (6 Defense proved, 6 Mailing not proved, 2 Nonappearance not proved, 1 Requests not compliant)2008, Appellate Term: 7 decisions (2 Defense proved, 1 Mailing not proved, 4 Nonappearance not proved)2007, Appellate Term: 13 decisions (1 Defense proved, 6 Mailing not proved, 5 Nonappearance not proved, 1 Triable issue)2006, Appellate Term: 17 decisions (1 Defense proved, 7 Mailing not proved, 5 Requests not compliant, 4 Triable issue)2005, Appellate Term: 20 decisions (3 Defense proved, 10 Mailing not proved, 6 Requests not compliant, 1 No-show excused)2004, Appellate Term: 15 decisions (3 Defense proved, 1 Mailing not proved, 10 Requests not compliant, 1 Triable issue)2024, Appellate Term: 6 decisions (6 Defense proved)2025, Appellate Term: 7 decisions (7 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2003, Appellate Term: 1 decision (1 Requests not compliant)2023, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 2 Triable issue)2022, Trial courts: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2021, Trial courts: 10 decisions (8 Defense proved, 2 Requests not compliant)2020, Trial courts: 3 decisions (2 Mailing not proved, 1 Requests not compliant)2019, Trial courts: 5 decisions (3 Mailing not proved, 2 Requests not compliant)2018, Trial courts: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2017, Trial courts: 6 decisions (2 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 Triable issue)2016, Trial courts: 4 decisions (3 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 1 Triable issue, 1 No-show excused)2013, Trial courts: 6 decisions (3 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Trial courts: 5 decisions (2 Defense proved, 3 Requests not compliant)2010, Trial courts: 3 decisions (2 Defense proved, 1 Requests not compliant)2009, Trial courts: 2 decisions (2 Defense proved)2008, Trial courts: 4 decisions (2 Defense proved, 2 Requests not compliant)2007, Trial courts: 1 decision (1 Mailing not proved)2006, Trial courts: 2 decisions (2 Mailing not proved)2005, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2004, Trial courts: 7 decisions (1 Defense proved, 2 Mailing not proved, 4 Requests not compliant)2024, Trial courts: 2 decisions (1 Mailing not proved, 1 Requests not compliant)2025, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2026, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2011, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the affidavit of the provider's employee sufficient to establish its prima facie entitlement to summary judgment.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 54
  • Appellate TermApp Term 819
  • Trial courtsTrial 115
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 1 decision (1 Proof sufficient)2011, Appellate Division: 7 decisions (7 Proof sufficient)2010, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 6 decisions (4 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 8 decisions (5 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 4 decisions (2 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 3 decisions (3 Proof sufficient)2004, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 22 decisions (22 Overdue not shown)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 42 decisions (8 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 43 decisions (11 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 21 decisions (10 Proof sufficient, 11 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 34 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 9 Business-record foundation lacking)2009, Appellate Term: 51 decisions (27 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 103 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 93 Business-record foundation lacking)2006, Appellate Term: 106 decisions (73 Proof sufficient, 25 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 1 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 46 decisions (32 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 2 decisions (1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 2 decisions (1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 2 decisions (1 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 6 decisions (6 Proof sufficient)2008, Trial courts: 10 decisions (4 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 6 decisions (4 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 13 decisions (10 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 18 decisions (10 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 11 decisions (5 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2026, Trial courts: 3 decisions (2 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)2025, Trial courts: 1 decision (1 Mailing/receipt not shown)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 446 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the 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.

Cited by

A label shows how the later decision treated this one.

  • Starlite Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51209(U)) FollowedThe insurer failed to rebut the provider's proof of untimely denials for two claims, while receipt timing remained disputed for a third.
  • South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51211(U)) FollowedThe insurer's denials were untimely because they exceeded 30 days after receipt of the bills or completion of the EUO, whichever was later.
  • Compas Med., P.C. v MVAIC (2015 NY Slip Op 51705(U))MVAIC failed to prove the assignor's nonappearance at the first scheduled EUO through admissible evidence.

Similar decisions

  • 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.
  • NY Wellness Med., P.C. v MVAIC (2025 NY Slip Op 51165(U))MVAIC failed to establish other available insurance or timely denials preserving its defense of the assignor's EUO nonappearances.
  • T & S Med. Supply Corp. v MVAIC (2017 NY Slip Op 51755(U))MVAIC established nonreceipt of a notice-of-intention affidavit, and the record did not establish the assignor's qualified-person status.
  • Metropolitan Med. Supplies, Inc. v MVAIC (2013 NY Slip Op 50257(U))MVAIC established that no timely notice of claim had been filed and no leave to file a late notice had been sought.
  • Metropolitan Med. Supplies, LLC v MVAIC (2013 NY Slip Op 51735(U))A provider seeking benefits from MVAIC must first exhaust remedies against a known owner of the vehicle that struck its assignor.
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