December 1, 2004

Star Med. Servs. P.C. v Eagle Ins. Co. (2004 NY Slip Op 24482)

https://www.beynensonlaw.com/case-law/star-med-servs-p-c-v-eagle-ins-co-2004-ny-slip-op-24482/

Court: Appellate Term, Second Department
Decided: December 1, 2004
Citation: 2004 NY Slip Op 24482 · 6 Misc 3d 56
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Distinguished in 1, contrasted (cf., but see) in 2 and followed in 8 later decisions (see Cited by)
Issues: EUO no-show Policy issues
Legal questions: No-show defense: insurer's proof · Claimant's prima facie case on motions (see the maps)

Cite as

Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 (App Term, 2d Dept 2004)

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 failed to establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, Second Department, reversed the order denying the provider's summary judgment motion, granted the motion, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a). The provider proved submission of its claim form and overdue payment; the insurer relied on the assignor's EUO nonappearance. Although the claim was submitted after the revised regulations took effect on April 5, 2002, 11 NYCRR 65-1.1 (d) required the revised endorsement in new or renewal policies issued on or after that date. The policy endorsement in effect governed, and the insurer's submissions did not establish an EUO requirement supporting denial.

Reported in New York Official Reports at Star Med. Servs. P.C. v Eagle Ins. Co. (2004 NY Slip Op 24482)

Star Med. Servs. P.C. v Eagle Ins. Co.

2004 NY Slip Op 24482 [6 Misc 3d 56]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 30, 2005

[*1]

Star Medical Services P.C., as Assignee of Prevy Modestil, Appellant, v Eagle Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, December 1, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Samuel K. Rubin, Bethpage, for respondent.

{**6 Misc 3d at 57} OPINION OF THE COURT

Memorandum.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted the statutory claim form setting forth the fact and the amount of the loss sustained and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]).

In opposition to plaintiff’s motion, defendant failed to raise triable issues of fact. Defendant denied plaintiff’s claim on the ground that plaintiff’s assignor failed to appear for examinations under oath (EUOs). The revised insurance regulations, which took effect on April [*2]5, 2002, include EUOs in the mandatory personal injury protection endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1 [d]). It is uncontroverted that plaintiff’s claim was submitted subsequent to April 5, 2002. However, “[c]onsistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect” (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], *2 [App Term, 9th & 10th Jud Dists 2004]). In the instant case, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see S & M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists 2004]). Accordingly, plaintiff’s failure to appear for EUOs cannot constitute a basis for denial of the claim.{**6 Misc 3d at 58}

Therefore, plaintiff’s motion for summary judgment should have been granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Patterson and Rios, JJ., concur.

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 defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements

Held the EUO no-show could not support the denial because the insurer failed to show that the policy contained the revised endorsement authorizing EUOs.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (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.

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: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the provider made out its prima facie case by proof that it submitted the statutory claim form stating the fact and amount of the loss and that payment was overdue.

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

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (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.

Cited in this decision

A label shows how this decision treated the case it cites.

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
S & M Supply Inc. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50693(U)) FollowedThe insurer's EUO defense was precluded by untimely denials, and its accident-fraud evidence was inadmissible.
S&m Supply Inc. v Lancer Ins. Co. (2004 NY Slip Op 50695(U)) FollowedThe insurer failed to establish an EUO policy endorsement or timely mailing of verification requests, so the 30-day claim period was not tolled.

Cited by (15)

A label shows how the later decision treated this one.

Metroscan Imaging P.C. v GEICO Ins. Co. (2005 NY Slip Op 25228) DistinguishedA fraudulent-incorporation defense survives untimely denial and applies to unpaid claims predating 11 NYCRR 65-3.16 (a) (12).
Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2008 NY Slip Op 28342) Contrasted (cf., but see)The 30-day examination deadline in 11 NYCRR 65-3.5 (d) does not apply to EUOs. The provider challenged summary judgment dismissing its claims because the initial EUO was set more than 30 days after receipt of the claim.
Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50294(U)) Contrasted (cf., but see)An EUO governed by amended Regulation 68 must be scheduled within a reasonable time after claim receipt, rather than within 30 days.
Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co. (2005 NYSlipOp 50648(U)) FollowedThe insurer failed to establish verification tolling because requests were untimely or unproved and its policy's EUO endorsement was not shown.
SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 51842(U)) FollowedThe insurer's EUO defense failed because it did not establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, First Department, reversed the denial of the providers' summary judgment motion, granted the motion, and remanded for statutory interest, attorney fees, and entry of judgment.
Gpm Chiropractic, P.C. v State Farm Mut. Ins. Co. (2005 NYSlipOp 50744(U)) FollowedThe insurer's investigator affidavit raised a triable coverage issue, but the assignor's EUO nonattendance did not warrant insurer summary judgment.
S & M Supply Inc. v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 50747(U)) FollowedThe insurer's investigator affidavit raised a triable staged-collision coverage issue despite its failure to deny the claim within 30 days.
A.B. Med. Servs. PLLC v Allstate Ins. Co. (2006 NY Slip Op 50474(U)) FollowedThe insurer failed to establish an EUO-authorizing endorsement or admissible support for its fraud defense.
Star Med. Servs. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50505(U)) FollowedThe insurer failed to establish an EUO-authorizing endorsement or submit admissible evidence of a staged-accident defense.
Dilon Med. Supply Corp. v Progressive Cas. Ins. Co. (2006 NY Slip Op 50908(U)) FollowedThe insurer failed to show tolling by EUO requests because it did not establish an EUO endorsement in the applicable policy.

Show all 15 citing decisions

Similar decisions

Elite Psychological Servs., P.C. v Trumbull Ins. Co. (2005 NY Slip Op 51427(U))The insurer failed to establish that the policy authorized EUOs, so its denial based on the assignor's nonattendance was untimely.
Star Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 50245(U))The insurer failed to support its EUO defense but raised a triable issue of whether other claims arose from an insured incident.
West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51374(U))The insurer failed to establish that the policy contained an endorsement authorizing EUOs. The provider proved submission of a claim stating the fact and amount of the loss and overdue payment under Insurance Law § 5106 (a).
King’S Med. Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50401(U))An insurer cannot deny a claim for EUO nonappearance under the former regulation by invoking a policy's cooperation clause.
Eagle Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50772(U))The provider's argument that the insurer had not proved a policy provision authorizing EUOs was rejected.