August 10, 2017

Shur v Unitrin Advantage Ins. Co. (2017 NY Slip Op 51011(U))

https://www.beynensonlaw.com/case-law/shur-v-unitrin-advantage-ins-co-2017-ny-slip-op-51011u/

Court: Appellate Term, Second Department
Decided: August 10, 2017
Citation: 2017 NY Slip Op 51011(U)
Posture: Summary judgment
Outcome: Split result
Issues: Staged accidents, lack of coverage Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No covered accident (founded belief) (see the maps)

Cite as

Shur v Unitrin Advantage Ins. Co., 2017 NY Slip Op 51011(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2017)

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 insurer's contradictory IME report failed to establish that the assignor's knee injury lacked a causal connection to the accident. The report attributed the injury both partly to the accident and to preexisting degeneration; the reviewed MRI report did not identify degenerative changes, and the examiner did not indicate reviewing the operative report. The provider also failed to establish either a denial beyond the 30-day period or a timely denial that was conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion and otherwise affirmed, leaving the provider's cross motion denied. It did not reach the provider's remaining contention.

Reported in New York Official Reports at Shur v Unitrin Advantage Ins. Co. (2017 NY Slip Op 51011(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Vladimir Shur, M.D., as Assignee of William Rosado, Appellant,
against
Unitrin Advantage Insurance Company, Respondent.

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Gullo & Associates, LLP ( Cristina Carollo, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 27, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see id.). Here, the affirmed report of the doctor who had performed an independent medical examination (IME) of the assignor contained contradictory statements (see e.g. Black v County of Dutchess, 87 AD3d 1097 [2011]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]) as to whether the injury to plaintiff’s assignor’s right knee was “partially causally related to” the accident at issue or caused by “preexisting degenerative changes.” Furthermore, an MRI report that was reviewed by the IME doctor did not set forth an impression of degenerative changes. Nor did the IME doctor indicate that he had examined an operative report on the arthroscopy at issue. Thus, contrary to the determination of the District Court, defendant failed to make a prima facie showing of lack of causation. Consequently, defendant’s motion should have been denied.

Plaintiff’s contention that its cross motion for summary judgment should have been granted lacks merit. Plaintiff failed to establish its prima facie entitlement to judgment as a [*2]matter of law since it did not establish either that defendant had failed to deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of the claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). In view of the foregoing, we do not reach plaintiff’s remaining contention.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 10, 2017

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's cross motion properly denied because it failed to show the claim was not denied within 30 days or that a timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer's motion denied: proof did not establish the defense prima facie; defense still open

Held the insurer failed to show lack of causation prima facie because its IME report contradicted itself on whether the knee injury was accident-related or degenerative, the MRI report it reviewed noted no degeneration, and no operative report was examined.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decision

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 20 (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. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))The insurer failed to prove a timely denial, and the provider failed to establish its prima facie entitlement to summary judgment.
Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 50113(U))The provider failed to establish its prima facie case, and the insurer failed to prove two missed EUOs. The provider did not show that the insurer failed to deny within 30 days or issued a timely denial that was conclusory, vague or meritless under Insurance Law § 5106 (a).
Queens Arthroscopy & Sports Medicine v Unitrin Direct Ins. Co (2013 NY Slip Op 52021(U))The provider was not bound by its assignor's coverage arbitration because the assignment preceded that proceeding and the provider was not a party.
Barshay v 21st Century Centennial Ins. Co. (2018 NY Slip Op 51605(U))The insurer's unsworn claim representative statement failed to establish timely denials based on the assignor's EUO nonappearance.
MDJ Med., P.C. v New York Cent. Mut. Ins. Co. (2013 NY Slip Op 51797(U))An assignor's failure to attend requested IMEs permits denial of all claims retroactively to the loss date, regardless of denial timing.