September 16, 2015
Sunlight Med. Care, P.C. v Esurance Ins. Co. (2015 NY Slip Op 51410(U))
https://www.beynensonlaw.com/case-law/sunlight-med-care-p-c-v-esurance-ins-co-2015-ny-slip-op51410u/
- Decided
- September 16, 2015
- Citation
- 2015 NY Slip Op 51410(U) · 49 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 5 later decisions (see Cited by)
- Legal questions
- Proof of mailing · No-show defense: insurer's proof (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 Sunlight Med. Care, P.C. v Esurance Ins. Co. (2015 NY Slip Op 51410(U))
| Sunlight Med. Care, P.C. v Esurance Ins. Co. |
| 2015 NY Slip Op 51410(U) [49 Misc 3d 130(A)] |
| Decided on September 16, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1490 Q C
against
Esurance Insurance Company and Jazmin Ford-Campbell, Respondents.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered June 14, 2013. The order denied plaintiff’s motion for summary judgment and granted a cross motion by defendant Esurance Insurance Company for summary judgment dismissing so much of the complaint as was asserted against it.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to, among other things, recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant Esurance Insurance Company (Esurance) cross-moved for summary judgment dismissing so much of the complaint as was asserted against it, arguing that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted Esurance’s cross motion.
Plaintiff’s sole argument on appeal is that Esurance mailed the EUO scheduling letters to the wrong address, and therefore that plaintiff’s motion should have been granted and Esurance’s cross motion denied. However, the record demonstrates conclusively that Esurance mailed the letters to the address provided by plaintiff on its bills and by plaintiff’s assignor on both her prescribed application for no-fault benefits (NF-2) and her signed assignment of benefits. Thus, plaintiff has not demonstrated that Esurance did not give the assignor proper notice of the EUOs. Consequently, the branch of plaintiff’s motion seeking summary judgment against Esurance was properly denied and Esurance’s cross motion for summary judgment dismissing so much of the complaint as was asserted against it was properly granted.
While plaintiff argues on appeal that the branch of its motion seeking summary judgment against its assignor should have been granted, it offers no reasoning in support of its argument. We note, however, that while plaintiff purports to sue its assignor pursuant to the assignment it received from the assignor, such a cause of action is based upon plaintiff’s own alleged rights against its assignor, and is not properly based upon the assignment.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: September 16, 2015
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.
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 sole argument that the EUO scheduling letters were mailed to the wrong address, because the record conclusively showed they went to the address on the bills, the NF-2 and the assignment.
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Rejected the provider's argument that the EUO letters went to the wrong address, since the record showed they were mailed to the address given on the bills, the NF-2 and the assignment, so the insurer's defense prevailed.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
Cited by
A label shows how the later decision treated this one.
- S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51004(U)) FollowedThe insurer obtained partial summary judgment on IME nonappearance, late claim submission, and fee schedule grounds.
- Brand Med. Supply, Inc. v Repwest Ins. Co. (2019 NY Slip Op 51183(U)) FollowedThe provider's challenge to IME notice failed because the mailing address matched the address on its bill and the assignor's application.
- Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51688(U)) FollowedThe insurer's IME notices used a proper address because it matched the assignor's sworn claim forms, despite omitting an apartment number.
- ESA Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2020 NY Slip Op 51324(U)) FollowedThe insurer proved timely EUO scheduling letters and the assignor's nonappearance, and the challenged mailing affidavit bore a notarial seal.
- AB Quality Health Supply Corp. v Nationwide Ins. (2022 NY Slip Op 50299(U)) FollowedThe insurer established proper mailing of the assignor's EUO notices to the address on the provider's NF-3 forms.
Similar decisions
- Great Health Care Chiropractic, P.C. v Esurance (2015 NY Slip Op 50807(U))The insurer established timely EUO notices, the assignor's nonappearance at duly scheduled EUOs and timely denials on that ground.
- Sharp View Diagnostic Imaging, P.C. v Esurance (2017 NY Slip Op 51466(U))The insurer's EUO letters supported tolling, and its proof established the assignor's failure to appear for the EUOs. The provider argued that the insurer relied on letters seeking no documents or information to toll the time to pay or deny.
- Metro 8 Med. Equip., Inc. v Esurance Ins. Co. (2016 NY Slip Op 50904(U))The insurer established the assignor's repeated EUO nonappearance through an attorney's affirmation and a scheduling employee's affidavit.
- Atlantic Radiology Imaging, P.C. v Esurance Ins. Co. (2016 NY Slip Op 50315(U))The provider's challenges to proof of EUO mailing and nonappearance failed because mailing was established and the wrong proof was challenged.
- Alleviation Med. Servs., P.C. v Esurance (2015 NY Slip Op 51715(U))The insurer proved timely mailing of EUO notices and denials and the assignor's failure to attend the duly scheduled EUOs. That nonappearance established failure to comply with a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider failed to raise a triable issue in opposition to the insurer's motion.