December 16, 2011
Quality Psychological Servs., P.C. v Auto One Ins. Co. (2011 NY Slip Op 52281(U))
https://www.beynensonlaw.com/case-law/quality-psychological-servs-p-c-v-auto-one-ins-co-2011-ny-slip-op52281u/
- Decided
- December 16, 2011
- Citation
- 2011 NY Slip Op 52281(U) · 34 Misc 3d 127(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- No-show: coverage defense or precludable? · 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 Quality Psychological Servs., P.C. v Auto One Ins. Co. (2011 NY Slip Op 52281(U))
| Quality Psychological Servs., P.C. v Auto One Ins. Co. |
| 2011 NY Slip Op 52281(U) [34 Misc 3d 127(A)] |
| Decided on December 16, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-1394 K C.
against
Auto One Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 23, 2010. The order denied plaintiff’s motion for summary judgment.
ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is granted and the matter is remitted to the Civil Court for the 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, plaintiff appeals from an order denying its motion for summary judgment. The Civil Court found that plaintiff had established its prima facie case and that the only issue for trial was defendant’s defense that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs).
The affidavit submitted by defendant’s claims representative was insufficient to establish that the denial of claim form, which denied the claim based upon the assignor’s failure to appear for IMEs, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As a result, the defense that the assignor failed to appear for scheduled IMEs is precluded. As defendant has not challenged the Civil Court’s finding, in effect, that plaintiff is otherwise entitled to judgment, plaintiff’s motion for summary judgment is granted (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).
Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted and
the matter is remitted to the Civil Court for the calculation of statutory
interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and
the regulations promulgated thereunder.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the IME no-show defense precluded because the insurer did not establish timely mailing of the denial based on the nonappearance.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (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 proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the claims representative's affidavit insufficient to establish that the denial had been timely mailed under the insurer's standard office practices.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Similar decisions
- Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51256(U))The insurer proved timely mailing of the IME notices and denial and the assignor's nonappearance, warranting dismissal of the provider's claim.
- Quality Psychological Servs., P.C. v Esurance Ins. Co. (2015 NY Slip Op 51225(U))The provider's challenges to the insurer's summary judgment motion were unpreserved because they were first raised on appeal.
- Quality Psychological Servs., P.C. v Metropolitan Cas. Ins. Co. (2013 NY Slip Op 50250(U))The insurer failed to establish that EUO scheduling letters were mailed before the scheduled EUO dates, defeating summary judgment.
- All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50307(U))The insurer failed to prove timely mailing of IME scheduling letters and therefore failed to establish tolling of its claim deadline.
- Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.