September 16, 2015
Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51404(U))
https://www.beynensonlaw.com/case-law/ultimate-health-prods-inc-v-american-tr-ins-co-2015-ny-slip-op51404u/
- Court
- Appellate Term, Second Department
- Decided
- September 16, 2015
- Citation
- 2015 NY Slip Op 51404(U) · 49 Misc 3d 129(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51404(U))
| Ultimate Health Prods., Inc. v American Tr. Ins. Co. |
| 2015 NY Slip Op 51404(U) [49 Misc 3d 129(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| This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-546 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 20, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims based on plaintiff’s assignor’s failure to appear for examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Contrary to plaintiff’s sole contention on appeal with respect to the merits of defendant’s cross motion, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).
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
Held the insurer established that the EUO scheduling letters had been timely mailed, rejecting the provider's sole merits contention.
Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (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
Upheld dismissal on the EUO no-show because the insurer proved timely mailing of the scheduling letters, the only element the provider disputed.
Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 518 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
Similar decisions
- Ultimate Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50377(U))Appearance at a duly scheduled EUO is a condition precedent to an insurer's liability under the policy.
- Metro Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51517(U))The insurer's proof established proper mailing of EUO scheduling letters and the assignor's failure to attend the EUOs. In the provider's action for assigned first-party no-fault benefits, the Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
- Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50820(U))The insurer's motion for summary judgment dismissing the provider's complaint based on EUO nonappearance was granted.
- Ultimate Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 51353(U))The insurer failed to establish timely mailing of verification requests, requiring vacatur of a finding under CPLR 3212 (g).
- Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51360(U))The insurer failed to establish timely mailing of both EUO scheduling letters through its two affidavits.