May 18, 2018

Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))

https://www.beynensonlaw.com/case-law/preferred-ortho-prods-inc-v-titan-ins-co-2018-ny-slip-op-50732u/

Court: Appellate Term, Second Department
Decided: May 18, 2018
Citation: 2018 NY Slip Op 50732(U) · 59 Misc 3d 144(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Timeliness and preclusion EUO no-show
Legal questions: No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

Preferred Ortho Prods., Inc. v Titan Ins. Co., 59 Misc 3d 144(A), 2018 NY Slip Op 50732(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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.

The provider's challenge to proof of denial mailing failed, and its remaining argument was raised for the first time on appeal. The insurer obtained summary judgment dismissing an action for assigned no-fault benefits on the ground that the provider failed to appear for duly scheduled EUOs. The Appellate Term, Second Department, rejected the provider's argument concerning the insurer's mailing practices and procedures, citing St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It declined to consider the remaining argument because it was unpreserved and affirmed the order in the insurer's favor.

Reported in New York Official Reports at Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))

[*1]

Preferred Ortho Prods., Inc. v Titan Ins. Co.

2018 NY Slip Op 50732(U) [59 Misc 3d 144(A)]

Decided on May 18, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2177 Q C

Preferred Ortho Products, Inc., as Assignee of Mercedes, Luis, Appellant,
against
Titan Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Gialleonardo, McDonald & Turchetti (Kevon Lewis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered July 9, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.

Plaintiff’s argument as to defendant’s practices and procedures regarding the mailing of the denial of claim form lacks merit (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining argument is not properly before this court, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and we decline to consider it.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 18, 2018

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: coverage defense or precludable?

Open the full map

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

Rejected the provider's challenge to the insurer's mailing of the denial and affirmed summary judgment for the insurer on its defense that the provider failed to appear for EUOs.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decision

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category.

Proof of mailing

Open 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

Rejected the provider's challenge to the insurer's practices and procedures for mailing the denial, leaving intact summary judgment for the insurer on its EUO nonappearance defense.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Mind & Body Acupuncture, P.C. v Elrac, Inc. (2015 NY Slip Op 51219(U))The insurer established full fee-schedule payment, and the provider's challenge to the IME letters' address was unpreserved.

Similar decisions

Preferred Ortho Prods., Inc. v 21st Century Ins. Co. (2019 NY Slip Op 50224(U))The provider's challenge to the address on the IME scheduling letters was unpreserved because it was first raised on appeal.
Preferred Ortho Prods., Inc. v Hereford Ins. Co. (2019 NY Slip Op 50688(U))The insurer's summary judgment cross motion dismissing the complaint for the assignor's IME nonappearance was granted and affirmed.
Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2018 NY Slip Op 50775(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance.
Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51320(U))The provider's objection that the IME notices improperly included an apartment number was unpreserved.