June 3, 2022
Warton Supplies, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50554(U))
https://www.beynensonlaw.com/case-law/warton-supplies-inc-v-geico-gen-ins-co-2022-ny-slip-op-50554u/
- Decided
- June 3, 2022
- Citation
- 2022 NY Slip Op 50554(U) · 75 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
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 Warton Supplies, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50554(U))
| Warton Supplies, Inc. v GEICO Gen. Ins. Co. |
| 2022 NY Slip Op 50554(U) [75 Misc 3d 135(A)] |
| Decided on June 3, 2022 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1033 K C
against
GEICO General Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered May 6, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
The affidavit submitted by defendant established that the EUO scheduling letters and denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney was sufficient to establish that she was present in her office to conduct the EUO of plaintiff on the scheduled dates and that plaintiff had failed to appear on those dates (see Warton Supplies, Inc. v GEICO (Gov Empls.), 73 Misc 3d 146[A], 2021 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). As a result, defendant demonstrated its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 3, 2022
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 insurer proved timely mailing of the EUO letters and, through the affirmation of the attorney present to conduct the EUOs, the provider's nonappearance, so the provider's opposition raised no triable issue.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (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)
Held the insurer established timely mailing of the denial of claim forms as part of its EUO no-show prima facie case under the element list requiring a timely denial.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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's affidavit established that the EUO scheduling letters and denial of claim forms were timely mailed under its standard office practices and procedures.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
- Warton Supplies, Inc. v GEICO (Gov Empls.) (2021 NY Slip Op 51253(U)) FollowedThe insurer's proof supported timely mailing presumptions for EUO notices and denials, and its staff counsel's affirmation was admissible.
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U)) FollowedThe insurer proved timely mailing of EUO notices and denials and the provider's nonappearance through an attorney's affirmation.
Similar decisions
- Warton Supplies, Inc. v GEICO Indem. Co. (2022 NY Slip Op 50770(U))The provider's challenge to an EUO nonappearance affirmation based on the attorney's status as insurer staff counsel was rejected.
- SVP Med Supply, Inc. (B) v GEICO (2022 NY Slip Op 50585(U))The insurer's submissions established timely mailing of EUO notices and denials and the provider's failure to appear for scheduled EUOs. An affidavit described the insurer's standard office practices and procedures for mailing the scheduling letters and denial forms.
- SVP Med Supply, Inc. v GEICO (2022 NY Slip Op 50775(U))The insurer's attorney affirmation established the provider's EUO nonappearances without specifying a particular time of day.
- Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))The insurer's proof established timely mailing of EUO notices and denials and the assignor's failure to appear for the scheduled EUOs. The insurer moved for summary judgment dismissing the provider's assigned no-fault claims.
- Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 51161(U))An insurer need not supply objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.