May 13, 2016
Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 50762(U))
https://www.beynensonlaw.com/case-law/omega-diagnostic-imaging-p-c-v-praetorian-ins-co-2016-ny-slip-op50762u/
- Decided
- May 13, 2016
- Citation
- 2016 NY Slip Op 50762(U) · 51 Misc 3d 147(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof · Proof of mailing (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 Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 50762(U))
| Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. |
| 2016 NY Slip Op 50762(U) [51 Misc 3d 147(A)] |
| Decided on May 13, 2016 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2016
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
571068/15
against
Praetorian Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Paul L. Alpert, J.), entered June 8, 2015, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Paul L. Alpert, J.), entered June 8, 2015, affirmed, with $10 costs.
While defendant-insurer established that it timely and properly mailed the notices for examinations under oath to plaintiff’s assignor and his attorney, and that the assignor failed to appear at the initial and follow-up EUOs (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]), the limited record so far developed presents triable issues as to whether the assignor’s failure to appear was excusable (see IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2014]). In this regard, defendant’s moving submission, which contains letters from its no-fault examiner and no-fault supervisor acknowledging the assignor’s incarceration, creates rather than eliminates genuine triable issues. We note that the exact period of the assignor’s incarceration remain unclear on this record.
We have considered and rejected defendant’s remaining contentions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 13, 2016
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: Proof on the no-show raises a question of fact; neither side wins the point as a matter of law
Held that although the insurer proved mailing of the EUO notices and the assignor's nonappearance at both EUOs, its own letters acknowledging his incarceration raised triable issues whether the nonappearance was excusable.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 4 (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.
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 (rules on the question, but another ground decided the case)
Held the insurer established timely and proper mailing of the initial and follow-up EUO notices to the assignor and his attorney, though summary judgment was denied because triable issues remained on whether the nonappearance was excusable.
Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921) FollowedFailure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.
- 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.
- IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. (2014 NY Slip Op 02902) FollowedThe providers' unexcused EUO nonappearances materially breached a condition precedent to indemnity and warranted summary judgment for the insurer.
Similar decisions
- Delta Diagnostic Radiology, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51676(U))The insurer failed to prove EUO or IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment.
- 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.
- Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U))The insurer's attorney established mailing of EUO notices and the assignor's nonappearance; transcripts concerning another assignor raised no issue.
- 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.
- Excel Imaging, P.C. v Infinity Select Ins. Co. (2014 NY Slip Op 51796(U))The insurer established timely EUO requests, the assignor's nonappearance, and a timely denial based on that failure.