May 21, 2021
Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of N.Y. (2021 NY Slip Op 50491(U))
https://www.beynensonlaw.com/case-law/sheepshead-bay-med-supply-inc-v-erie-ins-co-of-n-y-2021-ny-slip-op50491u/
- Decided
- May 21, 2021
- Citation
- 2021 NY Slip Op 50491(U) · 71 Misc 3d 140(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- 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 Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of N.Y. (2021 NY Slip Op 50491(U))
| Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of N.Y. |
| 2021 NY Slip Op 50491(U) [71 Misc 3d 140(A)] |
| Decided on May 21, 2021 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2020-158 K C
against
Erie Insurance Company of New York, Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Robyn M. Brilliant, P.C. (Robyn M. Brilliant and Larry Rogak of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 17, 2019. 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 entered September 17, 2019, which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations.
Contrary to plaintiff’s assertion, defendant established that it had mailed the NF-10 denial of claim forms at issue in duplicate. The affirmation of plaintiff’s counsel in opposition to defendant’s motion for summary judgment was insufficient to raise a triable issue of fact, as counsel did not demonstrate that he had personal knowledge of the facts (see Zuckerman v City of New York, 49 NY2d 557 [1980]). To the extent that plaintiff contends that it was prejudiced by defendant’s improper use of “outdated” denial of claim forms, the denial forms at issue are not fatally defective, as they contain substantially the same, pertinent information as the prescribed form (see 11 NYCRR 65-3.8 [c] [1]; NYU-Hospital for Joint Diseases v Allstate Ins. Co., 123 AD3d 781 [2014]; see also 11 NYCRR 65-3.8 [h]). Plaintiff’s remaining contention was improperly raised for the first time on appeal and, in any event, lacks merit.
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 21, 2021
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: Timely denial required as part of the no-show defense, and the insurer showed it
In affirming dismissal on the IME no-show defense, rejected the provider's challenges to the denials, holding the insurer proved it mailed them and that outdated forms with substantially the same information were not fatally defective.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (this one included) are in the same category.
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
Held the insurer established that it mailed the NF-10 denials in duplicate, and counsel's affirmation without personal knowledge raised no triable issue.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- NYU-Hospital for Joint Diseases v Allstate Ins. Co. (2014 NY Slip Op 08613) FollowedThe hospital failed to establish entitlement to summary judgment because its own papers included a timely and sufficient denial.
Cited by
A label shows how the later decision treated this one.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U)) FollowedEUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
- CuraHealth Specialty Pharm. Corp v State Farm Ins. Co. (2026 NY Slip Op 50852(U)) FollowedThe insurer established a founded belief that the collision was intentionally caused, and the provider failed to raise a triable issue.
Similar decisions
- City Anesthesia Healthcare, P.C. v Erie Ins. Co. of N.Y. (2021 NY Slip Op 50135(U))A pre-claim IME scheduling letter need not be mailed within 30 days after the insurer receives the NF-2.
- Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y. (2022 NY Slip Op 50569(U))An insurer need not prove that its first IME scheduling letter was sent within 15 days of receiving an NF-2 or another provider's claim.
- Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))The insurer's proof established timely mailing of EUO notices and denials and the assignor's failure to appear for the scheduled EUOs. The insurer moved for summary judgment dismissing the provider's assigned no-fault claims.
- Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2014 NY Slip Op 50411(U))The provider's challenges to the insurer's mailing affidavits were raised for the first time on appeal and were unpreserved.
- Metro Pain Specialist, P.C. v ELRAC, Inc. (2020 NY Slip Op 51341(U))The defendant failed to prove proper mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.