November 3, 2017
TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51510(U))
https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-21st-century-ins-co-2017-ny-slip-op51510u/
- Decided
- November 3, 2017
- Citation
- 2017 NY Slip Op 51510(U) · 57 Misc 3d 149(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 6 later decisions (see Cited by)
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 TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51510(U))
| TAM Med. Supply Corp. v 21st Century Ins. Co. |
| 2017 NY Slip Op 51510(U) [57 Misc 3d 149(A)] |
| Decided on November 3, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th
JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M.
SOLOMON, JJ
2014-2698 Q C
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered October 16, 2014. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contentions, the affirmations by the attorneys who were scheduled to conduct the EUOs, and certified transcripts reflecting plaintiff’s failure to appear for the EUOs, established that plaintiff’s assignor had failed to appear at either of the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Laga v 21st Century Ins. Co., 53 Misc 3d 148[A], 2016 NY Slip Op 51623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff’s remaining contentions lack merit.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 03, 2017
Legal questions (3)
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 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
Held the affirmations of the attorneys scheduled to conduct the EUOs, with certified transcripts of the nonappearances, established that the assignor failed to appear at either EUO.
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.
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 (rules on the question, but another ground decided the case)
Sustained the EUO no-show dismissal after finding the insurer sufficiently established that the denial of claim forms had been timely mailed.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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 (rules on the question, but another ground decided the case)
Held the insurer sufficiently established that its denial of claim forms had been timely mailed.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- 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.
- Adelaida M. Laga, Pt v 21st Century Ins. Co. (2016 NY Slip Op 51623(U)) FollowedThe insurer's summary judgment motion dismissing the first four causes of action was granted based on timely mailed denials.
Cited by
A label shows how the later decision treated this one.
- GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 50397(U)) FollowedThe provider raised no triable issue on the EUO nonappearance defense where the scheduling letters offered virtual attendance.
- Sayyed DC, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50311(U)) FollowedThe insurer established its EUO nonappearance defense to six bills, but untimely denials barred that defense to two others.
- Kings County Physicians Group v Nationwide Ins. Co. (2021 NY Slip Op 50337(U)) FollowedThe assignor's attendance at one EUO did not cure the failure to appear for two scheduled continued EUOs. The Civil Court, Queens County, granted the insurer summary judgment dismissing the provider's complaint.
- NY Wellness Med. P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50382(U)) FollowedThe insurer's delay notices referring only to the assignor's EUO failed to toll the payment period for three provider bills.
- July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins. (2022 NY Slip Op 50302(U)) FollowedThe insurer proved the assignor's EUO nonappearance through an investigator's affidavit and certified transcripts.
- ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50448(U)) FollowedThe insurer's attorney affidavits and certified EUO transcripts established the provider's failure to appear.
- New York Core Chiropractic, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50599(U))An EUO request sent after 15 business days but within 30 calendar days tolls the time to pay or deny, with a reduction for lateness.
- Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50607(U))The insurer established timely EUO notices, the provider's nonappearances and timely denials, and the provider failed to rebut that showing.
- Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51246(U))The insurer established timely mailing of EUO scheduling letters and denials and sufficient proof of nonappearance.
- Spring Rehab PT P.C. v Nationwide Affinity Ins. Co. (2022 NY Slip Op 51268(U))The insurer's affidavits established timely mailing of EUO notices and denials and the assignor's failure to appear for the EUOs. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
Similar decisions
- TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish prima facie entitlement to judgment.
- TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51624(U))The provider's challenge to the IME scheduling letters' inclusion of an apartment number was unpreserved because it was first raised on appeal.
- Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U))The insurer established that it first learned of the accident through an NF-2 form submitted more than 30 days after the accident.
- Tam Med. Supply Corp. v Tri State Consumers Ins. Co. (2016 NY Slip Op 51350(U))The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. The provider challenged that proof on appeal from an order denying its motion for summary judgment and granting the insurer's cross motion dismissing the action for assigned no-fault benefits.
- Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 52068(U))The insurer's cross motion for summary judgment dismissing the complaint for the provider's EUO nonappearance was granted and affirmed.