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)
- Legal questions
- No-show defense: insurer's proof · Claimant's prima facie case on motions (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 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-956 K C
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.
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.
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.
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.
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.